Oak  Street 
UNCLASSIFIED 

ni’v.af  XU*  Uihriiry 

P'K . ;  7  54 

Washington,  February  20,  1830. 

Dear  Sib  :  I  have  been  instructed  by  the  Board  of  Directors  of  the  Chesapeake 
and  Ohio  Canal  Company,  to  engage  you  to  draw  out,  for  publication,  the  Argument 
which  you  delivered,  as  our  counsel,  before  Chancellor  Bland,  at  Annapolis,  during 
the  last  Autumn,  on  the  motion  made,  at  the  instance  of  the  Chesapeake  and  Ohio 
Canal  Company,  to  dissolve  the  injunction  which  had  been  obtained  at  the  suit  of  the 
Baltimore  and  Ohio  Rail-road  Company,  and  by  which  the  progress  of  the  Chesapeake 
and  Ohio  Canal  was  arrested  at  “The  Point  of  Rocks,”  in  Maryland. 

«  The  report  which  has  gone  abroad,  and  is  now  diligently  circulated,  to  the  preju- 

y  {  dice  of  this  company,  that  the  survey  about  to  be  made,  in  compliance  with  the  views 

of  the  Chancellor  of  Maryland,  was  sought  by  the  President  and  Directors  of  this  com¬ 
pany,  gives  an  additional  importance  to  the  request  which  I  had  the  honor  verbally  to 
communicate  to  you  sometime  ago,  and  which  it  is  now  made  my  duty  to  repeat  in  a 
more  formal  manner. 

With  great  respect,  I  am,  dear  sir,  yours  truly, 

C.  F.  MERCER, 

President  of  the  Chesapeake  and  Ohio  Canal  Company , 

William  Wirt,  Esq. 

\  '  _ 


Washington,  March  10,  1830. 

Dear  Sir  :  The  request  which  you  made  of  me,  last  month,  on  behalf  of  the  Chesa¬ 
peake  and  Ohio  Canal  Company,  to  draw  out  my  Argument  before  the  Chancellor  of 
Maryland,  last  Summer,  on  the  motion  to  dissolve  the  injunction  obtained  against  them 
by  the  Baltimore  and  Ohio  Rail-road  Company,  found  me  so  closely  and  constantly  en¬ 
gaged  with  my  duties  in  the  Supreme  Court,  as  to  render  it  impossible  for  me  to  do 
more  than  to  make  a  rough  sketch  from  my  notes  of  the  propositions  which  I  endeavor¬ 
ed  to  maintain  in  that  argument.  I  have  had  no  time  to  make  a  full  developement  of 
my  views,  much  less  to  attend  to  style.  In  truth,  what  I  now  hand  you  is  very  little 
more  than  a  rough  copy  of  my  original  notes.  It  may  still,  however,  answer  the  purpose 
which  you  have  in  view,  of  shewing  the  grounds  on  which  we  sought  and  expected  a 
dissolution  of  the  injunction,  as  well  as  those  on  which  we  rest  the  prior  right  of  your 
company  to  the  choice  of  route  along  the  left  bank  of  the  Potomac,  and  of  shewing,  also, 
that  the  dilatory  measures  which  keep  the  decision  in  suspense,  were  so  far  from  hav¬ 
ing  been  sought  by  us,  which  I  understand  to  be  the  representation,  that  we  deprecat¬ 
ed  and  resisted  those  measures  with  all  the  earnestness,  and  by  every  argument  and 
consideration  which  we  could  suggest. 

Yours,  most  respectfully, 

WILLIAM  WIRT 

Charles  F.  Mercer,  Esq. 

President  Chesapeake  and  Ohio  Canal  Company . 


IN  THE  HIGH  COURT  OF  CHANCERY  OF  THE  STATE 
OF  MARYLAND. 


The  Baltimore  and  Ohio  Rail  Road  Company 

vs. 

The  Chesapeake  and  Ohio  Canal  Company. 


The  charter  of  the  Defendants,  the  Chesapeake  and  Ohio  Canal 
Company,  was  granted  by  the  State  of  Virginia,  on  the  27th  Janua¬ 
ry,  1824 — (See  Appendix  A.) 

This  grant  was  made  to  depend  on  the  condition  of  its  receiving 
the  assent  of  the  State  of  Maryland,  and  of  the  Congress  of  the  Unit¬ 
ed  States.  It  received  the  assent  of  the  State  of  Maryland  in  De¬ 
cember,  1824  ;  and  of  Congress,  on  the  third  March,  1825.  So  far, 
therefore,  as  the  Canal  was  proposed  to  be  conducted  through  the 
territory  within  the  jurisdiction  of  either  of  these  sovereigns,  the  com¬ 
pact  became  complete  at  the  latter  date — (See  Appendix  A.) 

The  object  of  the  incorporation  is  announced  in  the  preamble  of 
the  charter  :  it  was  to  construct  “  a  navigable  canal  from  the  tide 
water  of  the  river  Potomac,  in  the  District  of  Columbia,  to  the 
moutli  of  Savage  Creek,  on  the  north  branch  of  said  river,  and 
extending,  thence,  across  the  Alleghany  Mountain,  to  some  convenient 
point  of  the  navigable  waters  of  the  river  Ohio,  or  some  of  its  tri¬ 
butary  streams,  to  be  fed,  through  its  course,  on  the  east  side  of  the 
Mountain,  by  the  river  Potomac,  and  the  streams  which  empty  there¬ 
in,  and  on  the  western  side,”  &c. 

To  enable  the  Company  thus  incorporated,  to  accomplish  this  ob¬ 
ject,  the  4th  section  of  the  act  gives  to  “the  President  and  Direc¬ 
tors,  and  their  successors,  full  power  and  authority  to  appoint,  and, 
at  their  pleasure,  to  dismiss,  such  engineer  or  engineers,  and  agent  or 
agents,  as  they  may  deem  expedient,  and  to  fix  their  compensation  ; 
and  to  agree  with  any  person  or  persons,  on  behalf  of  the  said  Com¬ 
pany,  to  cut  canals,  erect  dams,  open  feeders,  construct  locks,  and 
perform  such  other  works  as  they  shall  judge  necessary  or  expedi¬ 
ent,  for  completing  the  canal  hereinbefore  mentioned  and  de¬ 
scribed. ” 

The  15th  section,  after  reciting,  that,  “  whereas  it  is  necessary  for 
the  making  of  the  said  canal,  locks,  dams,  ponds,  feeders,  and  other 
works,  that  a  provision  should  be  made  for  condemning  a  quantity  of 
land  for  the  purpose,”  proceeds  to  authorize  the  Company  “  to  agree 


97321/' 


4 


with  the  owners  of  any  land,  through  which  the  said  canal  is  intend¬ 
ed  to  pass,  for  the  purchase,  or  use  and  occupation  thereof;  and,  in 
case  of  disagreement,  or  in  case  the  owner  thereof  shall  be  a  feme 
covert,”  &c.  it  authorizes  a  jury  to  be  summoned,  to  estimate  the 
damages,  and,  on  payment  thereof,  it  vests  the  Company  with  an  es¬ 
tate  in  perpetuity,  in  the  land  so  condemned. 

Various  reports  and  surveys  had  been  made  and  published  under 
the  authority  of  Congress,  and  of  the  States  of  Virginia  and  Mary¬ 
land,  to  demonstrate  the  practicability  of  such  a  canal  as  this  charter 
described ;  and  their  reports  and  surveys,  with  their  explanatory 
plats,  invariably  indicated  the  left  bank  of  the  Potomac  as  present¬ 
ing  the  preferable  route  for  the  canal.  (B.) 

The  Baltimore  and  Ohio  Rail  Road  Company  wras  called  into  ex¬ 
istence  by  an  act  of  the  Legislature  of  Maryland,  alone ;  which  act 
was  passed  at  the  December  session  of  1828. 

The  Defendants  having  discovered  that  the  Baltimore  and  Ohio  Rail 
Road  Company,  leading  the  route  which  was  understood  to  have  been 
originally  contemplated  by  them,  had  determined  to  come  dow  n  to  the 
valley  of  the  Potomac,  and  to  take  the  left  bank  of 'that  river,  and  that, 
with  this  viewr,  they  were  endeavoring  to  pre-occupy  that  bank  by  pur¬ 
chasing  up  the  land  at  all  the  narrow  and  difficult  passes,  and  condemn¬ 
ing  it,  by  juries,  where  they  could  not  acquire  it  by  purchase  ;  and  the 
Defendants  being  further  advised,  that  this  was  an  unlawful  invasion 
of  the  'prior  right  secured  to  them,  not  only  by  their  direct  charter, 
but  by  the  early  charter  of  the  Potomac  Company,  to  all  whose  rights 
they  had  succeeded,  by  assignment,  applied  to  the  Honorable  John 
Buchanan,  the  presiding  Judge  of  the  Court  of  Appeals  of  Mary¬ 
land,  and  one  of  the  Judges  of  the  circuit  in  which  these  operations 
were  going  on,  to  arrest  them  by  injunction  ;  and  an  injunction,  for 
the  purpose,  was  accordingly  awarded  by  him,  in  Washington  coun¬ 
ty,  in  the  State  of  Maryland.  The  bill  there  filed  by  these  Defend¬ 
ants,  contains  an  exposition  of  the  grounds  on  which  they  assert 
this  prior  right,  and  they  had  hoped  that  the  Rail  Road  Company 
would  have  answered  that  bill,  and  brought  this  decisive  question  to 
a  speedy  issue.  Instead  of  answering  this  bill,  however,  the  Rail  Road 
Company  have  applied  to  the  Chancellor  of  Maryland  for  a  similar 
injunction  against  these  Defendants,  asserting  their  own  prior  right 
to  the  choice  of  route,  and  praying  for  an  injunction,  until  this 
question  of  priority  of  l  ight  can  be  heard  and  determined.  This 
injunction  has  been  awarded,  and  its  effect  is  to  to  block  up  the 
whole  of  the  left  bank  of  the  Potomac  against  these  Defendants,  from 
the  Point  of  Rocks  to  Cumberland,  and  to  render  it  impossible  for 
them  to  proceed  in  execution  of  their  works,  above  the  “  Point  of 
Rocks.”  Their  charter  being  limited,  in  point  of  time,  it  is  impor¬ 
tant  for  them  to  have  the  whole  course  open  to  their  operations  ;  which, 
according  to  the  advanced  state  of  the  science  of  canal  ling,  can  he 
carried  forward  at  different  and  distant  points  of  their  line,  at  one 
and  the  same  time. 

These  defendants  having  answered  the  bill  on  wlii^ch  the  injunction 
is  founded,  now  move  that  the  injunction  shall  be  dissolved. 


5 


We  insist  that  it  ought  to  be  dissolved,  because  the  answer  denies 
the  fundamental  allegation  of  the  bill,  on  which,  its  equity  rests.  The 
injunction  prohibits  the  defendants  from  acquiring,  by  purchase 
or  condemnation,  certain  lands  along  the  margin  of  the  Potomac,  for 
the  passage  of  the  canal.  The  bill  alleges  that  the  defendants  claim 
the  right  to  acquire  these  lands  for  the  passage  of  the  canal,  by  an 
asserted  right  of  election,  prior  to  that  of  the  complainants;  and  the 
bill  denies  that  any  such  prior  right  exists,  in  behalf  of  the  defend¬ 
ants.  The  defendants,  in  their  answer,  meeting  this  allegation  of  the 
bill,  insist  that  this  prior  right  does  exist  in  their  behalf,  and  they 
place  their  authority  to  make  these  acquisitions  by  purchase  and  con¬ 
demnation,  on  the  precise  basis  of  such,  their  prior  right.  The  bill 
and  answer,  therefore,  are  at  issue  on  this  precise  question  :  and  a 
moment’s  consideration  will  make  it  manifest,  that  the  fate  of  the 
injunction  must  depend  on  the  decision  of  this  question  :  for,  if  the 
Chesapeake  and  Ohio  Canal  Company  have,  by  law ,  the  prior  choice 
of  their  own  route,  along  the  shores  of  the  Potomac,  it  must  be  manifest 
that  no  in  junction,  whose  object  it  is  to  drive  them  from  that  choice,  in 
favor  of  any  other  corporation  or  individual,  can  correctly  stand. 
The  existence  of  a  prior  and  paramount  choice  of  route,  in  favor 
of  the  Chesapeake  and  Ohio  Canal  Company,  from  its  very  nature, 
puts  down  all  competition  :  for,  to  permit  a  competition  to  arise,  and 
to  turn  them  aside  from  that  choice,  by  an  injunction,  is  to  deny  the 
existence  of  a  prior  and  paramount  choice  in  their  favor.  The  in¬ 
junction  which  has  been  granted,  on  the  allegation  of  the  Bill,  that 
the  defendants  had  no  such  prior  right  of  election  of  their  route,  was 
rightly  granted,  upon  the  assumption  that  they  had  no  such  prior 
right :  for,  on  this  head,  we  admit,  that,  if  the  rights  of  these 
corporations  be  equal  in  point  of  time  ;  if  the  sovereigns  who  creat¬ 
ed  them  both,  intended  to  start  them,  like  race  horses,  on  the  same 
field,  so  that  whichever  first  reached  the  goal  should  win  the  prize; 
or  rather,  intended  to  pit  them,  like  gladiators,  on  the  same  arena , 
to  cut  each  others’  throats,  and  to  contend  for  victory  and  life  in 
every  blow — there  is  no  controversy  in  the  case.  The  race  and  the 
battle  must  both  be  to  the  swiftest.  But  if,  according  to  the  an¬ 
swer,  the  charter  which  called  the  Chesapeake  and  Ohio  Canal  Com¬ 
pany  into  existence,  gave  them  the  prior  right  to  the  choice  of  route 
for  their  canal,  along  the  shores  of  the  Potomac,  it  must  be  conceded, 
and  I  do  not  understand  it  to  be  denied,  that  an  injunction  restrain¬ 
ing  them  in  the  exercise  of  that  choice,  cannot  be  permitted  to  stand: 
for,  if  the  sovereigns  who  created  this  corporation  have  authorized 
the  Company  to  choose  their  route,  by  prior  right,  it  cannot  be  com¬ 
petent  to  any  court,  acting  under  the  authority  of  these  sovereigns, 
or  cither  of  them,  to  say  that  they  shall  not  choose  it.  For  this 
would  be  the  exercise  of  legislative,  not  of  judicial  power.  It  would 
be  a  repeal,  by  judicial  authority,  of  that  prior  right,  which  the  char¬ 
ter,  emanating  from  legislative  power,  had  conferred.  Hence,  I 
conceive  it  to  be  manifest,  that  the  whole  controversy  turns  on  the  ex¬ 
istence  or  non  -existence  of  this  prior  right  rtf  choice,  denied  to  the 


6 


Chesapeake  and  Ohio  Canal  Company  by  the  Bill,  but  asserted  by 
the  answer. 

There  is  not  another  question  in  the  cause,  which,  in  comparison 
with  the  above,  does  not  either  become  insignificant,  or  totally 
vanish.  Decide  any  other  point  in  issue  against  the  defendants,  yet, 
if  this  be  in  their  favor,  the  injunction  must  be  dissolved ;  because 
the  injunction  denies  the  prior  right  of  choice,  by  restraining  it. 

Let  me  illustrate  the  truth  of  this  position. 

Suppose  every  allegation  of  the  Bill,  which  the  complainants’ 
counsel  insist,  constitutes  the  equity  of  the  Bill,  to  be  unimpeached 
by  the  answer,  to  wit : 

1.  That  the  complainants  are  incorporated,  and  have  complied 
with  all  conditions  necessary  to  give  them  a  corporate  existence. 

2.  That  the  charter  gives  them  them  a  right  to  obtain  lands  on 
doing  certain  things. 

3.  That  they  took  the  steps  necessary  to  gain  this  right  to  the  land 
in  controversy. 

Suppose  all  this  to  be  true  ;  yet,  if  there  was  resting,  all  the  while, 
upon  these  lands,  a  prior  and  paramount  charge  in  favor  of  the  de¬ 
fendants,  which  could  not  be  disturbed  by  these  movements — that 
prior  and  paramount  title,  still  existing,  would  forbid  the  continuance 
of  this  injunction,  which  operates  to  disturb  and  restrain  it.  It  is 
like  the  case  of  a  second  mortgagee  who  does  every  thing  necessary 
to  perfect  his  right,  so  far  as  his  own  isolated  claim  is  concerned, 
but  who  still  remains  subject  to  the  rights  of  a  prior  mortgagee. 
These  latter  rights  over-ride  all  that  he  has  done,  and  leave  these 
acts  of  his  matters  of  no  consequence  in  relation  to  such  prior 
mortgagee.  Let  every  other  contested  question  in  the  case  be  decided 
in  favor  of  the  complainants,  if  the  question  of  prior,,  paramount  and 
continuing  election  be  decided  in  favor  of  the  defendants,  the  injunc¬ 
tion  which  impairs,  and  restrains,  and  strips  them  of  the  right,  can¬ 
not  be  maintained.  This  question,  therefore,  of  prior  right,  meets 
the  court  at  every  turn.  If  decided  in  favor  of  the  defendants,  the 
injunction  cannot  stand  ;  if,  against  them,  there  is  then  an  end  to  the 
whole  controversy,  at  least  on  this  head. 

I  should  proceed,  at  once,  to  show  the  existence  of  this  prior  right 
of  choice  in  favor  of  the  defendants,  but  that  we  are  met,  at  the  thres¬ 
hold,  by  the  objection,  that  this  question  is  not  now  proper  for  the 
consideration  of  the  Court,  but  must  await  the  final  hearing.  Why 
is  it  not  proper  for  consideration,  on  the  question  to  dissolve  ?  Be¬ 
cause,  we  are  told,  that  this  court  has  decided,  in  the  case  of 
Delaplane,  &c.  vs,  Parker,  &c.  that,  “  on  motions  of  this  kind,  the 
court  is  confined  to  the  case  as  shewn  by  the  bill,  or  rather  to  so 
much  of  it  as  exhibits  that  foundation  of  equity  whereon  the  injunc¬ 
tion  has  been  rested,  and  upon  which,  if  at  all,  it  must  continue  to 
repose,  and  only  so  much  of  the  answer  is  to  be  taken  into  considera¬ 
tion  as  is  responsive  to  the  case  as  thus  set  forth  by  the  bill.  If  the 
materials  of  which  that  case  is  composed,  be  denied,  the  injunction 
must  be  dissolved ;  but  if  they  arc  admitted,  or  not  denied,  the  in- 


7 


junction  must  be  continued  ;  and  that,  too,  notwithstanding  the 
owner  may  have  advanced  matter  in  avoidance,  which,  if  established 
at  the  hearing,  will  be  a  ground  for  dissolving  the  injunction  ;  and, 
also,  be  a  complete  bar  to  all  the  relief  prayed  for  by  the  Bill.” 
Without  questioning  the  soundness  of  this  principle,  or  insisting  on  its 
true  measure  and  meaning  ;  but  admitting  it  in  the  utmost  latitude  of 
the  terms  in  which  it  is  expressed,  does  it  shut  out  the  enquiry  of 
this  prior  right,  on  this  motion  to  dissolve  ?  It  is  said  that  it  does, 
because  this  question  of  prior  right  forms  no  part  of  the  material  al¬ 
legations  on  which  the  equity  of  the  Bill  rests  ;  but  is  new  matter 
in  avoidance  stated  in  the  answer.  The  meaning  of  new  matter  in 
avoidance,  is,  that  it  is  something  new  in  relation  to  the  case  made 
by  the  bill — something  not  called  for  by  the  allegations  of  the  bill — 
not  responsive ,  therefore,  to  any  allegation  of  the  bill.  But  if  this 
question  of  prior  right  be  among  the  allegations  of  the  bill,  the 
answer  affirming  it,  is  not  the  statement  of  new  matter  in  avoidance, 
but  is  responsive  to  the  bill ;  and  if  it  be  not  only  among  the  allega¬ 
tions  of  the  bill,  but  be,  also,  an  allegation  material  to  the  equity  of 
the  bill ;  then  the  answer  contradicting  the  bill,  in  this  particular, 
is  responsive  to  it ;  and  if  the  matter  be  vital  to  the  equity  of  the 
bill,  the  contradiction  given  to  it  by  the  answer,  authorizes  us  to  call 
for  a  dissolution  of  the  injunction,  on  the  very  principle  of  Delaplane 
vs,  Parker. 

What  is  the  fact  with  regard  to  the  allegations  of  the  bill  ?  Is 
the  question  of  prior  right,  on  the  part  of  the  defendants,  among 
these  allegations,  and  is  it  denied  ?  Not  only  is  it  among  the  allega¬ 
tions  of  every  one  of  these  bills,  and  the  right  denied,  but,  in  every 
bill,  the  injunction  is  prayed  only  “  till  the  prior  right  claimed  by 
the  defendant  shall  be  decided.”  [ See  the  bills ,  and  their  prayers, 
which  were  here  read  and  commented  on  by  the  counsel .]  Jpp.  C. 
We  see,  then,  that  this  question  of  prior  right  of  the  defendants  is 
distinctly  brought  forward  by  the  bill,  and  is  emphatically  denied. 

The  answer,  on  the  other  hand,  as  distinctly  and  repeatedly  asserts 
the  existence  of  this  prior  right,  and  rests  the  claims  of  the  defend¬ 
ants  on  it.  It  is,  therefore,  not  new  matter  in  avoidance  of  the  alle- 
tions  of  the  bill ;  but  is  old  matter,  directly  responsive  to  the  allegations 
of  the  bill. 

Objection. — This  allegation  of  the  bill  is  only  brought  forward, 
incidentally,  in  consequence  of  the  complainants  having,  in  the  bill, 
here  introduced  the  subject  of  our  bill  in  Washington  county. 

Answer. — It  was  their  own  choice  to  introduce  that  bill,  and  if 
they  had  meant  to  make  no  other  use  of  it,  than  to  show  that  we  had 
obtained  an  injunction  against  them,  for  which  this  was  to  be  the 
retaliation,  they  might  have  stopped  with  the  statement  of  that  fact: 
for  this  bill  of  their’s,  in  this  Court ,  was  no  answer  to  our  bill  in 
Washington  county.  They  were  not  called  upon  here ,  therefore,  to 
deny  the  prior  right,  in  answer  to  that  bill;  but  having,  for  their  own 
purposes,  introduced  the  subject,  they  felt  the  vital  importance  of 


s 


denying  it  here  :  and  they  have  denied  it,  as  a  substantial  allegation 
of  this  bill;  and,  having  denied  it,  they  have  opened  themselves  to  an 
answer  on  the  same  point,  and  made  an  assertion  of  this  prior  right 
responsive  to  the  bill.  The  answer,  then,  on  this  point,  is  not  new 
matter  in  avoidance  of  the  bill,  but  matter  directly  responsive  to  it. 
Was  it  an  allegation  material  to  the  equity  of  this  bill  ?  I  have 
shown  that  it  constitutes  the  very  gist  of  the  controversy  :  for,  if  my 
own  argument  were  inconclusive  on  this  point,  the  very  prayers  of 
their  bill,  in  asking  for  the  continuance  of  the  injunction,  only  till  the 
prior  right  shall  be  decided ,  shows  that  they  understood  it  to  be  the 
very  hinge  of  the  dispute,  and  the  terminus  of  the  controversy ;  and 
their  prayer  seems  to  admit,  that,  if  this  point  shall  be  decided  in  our 
favor,  there  is  an  end  of  their  claim.  Since,  then,  the  answer  insist¬ 
ing  on  the  prior  right  of  the  Chesapeake  and  Ohio  Canal  Company  is, 
in  this  particular,  responsive  to  the  bill,  and  since  the  allegation 
which  it  thus  contradicts,  is  vital  to  the  equity  of  the  bill,  the  case 
of  Delaplane  vs.  Parker  becomes  an  authority  in  our  favor  ;  and  if 
the  question  of  the  continuance  of  the  injunction  is  to  depend  on  the 
mere  averment  of  the  bill,  on  the  one  hand,  in  a  matter  vital  to  its 
equity,  and  the  denial  of  the  answer,  on  the  other,  on  that  very  point, 
the  injunction,  on  that  authority,  must  be  dissolved. 

Still,  they  say,  that  this  question  must  be  suspended  till  the 
final  hearing.  Why  ?  Is  it  a  question  which  calls  for  proof  under  a 
commission  ?  Is  it  a  disputed  question  of  fact9  to  be  settled  by  the 
evidence  of  witnesses?  No.  It  is  a  question  of  law— to  be  settled  by 
a  reference  to  the  laws,  and  which  can  be  just  as  well  settled  now , 
as  at  the  final  hearing.  It  depends  solely  on  the  charter  of  these 
several  corporations,  whether  the  prior  right  exists  or  not.  No 
depositions  can  vary  it  in  the  slightest  degree ;  because  depositions 
cannot  vary  the  constructions  of  laws ;  and  the  question  is  precisely 
the  same  now,  and  appeals  to  the  very  same  tests,  and  must  be 
decidedby  the  very  same  standard,  as  it  will,  and  must  be  decided  on 
the  final  hearing,  and  by  no  other  standard.  Why,  then,  defer  the 
decision  ? — more  especially  since  the  prayers  of  the  bills  have  put  the 
continuance  of  the  injunctions  solely  on  the  decision  of  this  very 
question  of  prior  right. 

Among  other  arguments  which  have  been  urged  in  support  of  the 
injunction,  it  is  insisted  by  the  counsel  on  the  other  side,  that  the 
injunction  ought  to  be  continued  until  the  final  hearing,  to  give  the 
court  an  opportunity  of  ascertaining,  by  actual  surveys,  and  evidence 
taken  on  the  ground,  whether  both  works  cannot  be  conducted  along 
the  same  bank  of  the  Potomac :  and,  it  is  said  by  the  counsel,  that 
the  alleged  incompatibility  of  the  charter  depends  on  this  fact ;  a 
fact  which  can  be  settled  in  no  other  way,  than  by  the  evidence  of 
surveys,  reports  and  depositions,  taken  on  the  ground.  Now,  it  is 
to  be  observed,  that  the  injunction  which  bars  the  operations  of  the 
Chesapeake  and  Ohio  Canal  Company,  runs  down  to  the  low  water 
mark  of  the  Potomac ,  and  extends  from  the  “  Point  of  Rocks”  to 
“  Cumberland so  that,  through  that  whole  extent  of  country,  so 


9 


long  as  this  injunction  shall  be  permitted  to  stand,  the  defendants  arc 
effectually  barred  from  performing  a  single,  operation  on  that  bank, 
in  advancement  of  the  great  national  work  committed  to  their  care. 

The  position  which  the  defendants  hold  themselves  ready  to  make 
good,  is,  that  both  under  the  charter  of  the  Potomac  Company,  which 
istheir’s,  by  assignment,  and  under  their  own  charter,  they  have  an 
absolute  right  to  carry  their  canal  along  the  left  bank  of  the  Potomac, 
and  to  choose  their  own  route ;  that  this  was  a  right  secured  to  them 
by  charter,  and  by  the  plighted  faith  of  the  sovereigns,  who  were 
alone  interested  in  it,  before  the  complainants,  as  a  corporate  body, 
came  into  existence ;  and  they  insist  on  being  permitted  to  exercise 
this  right,  without  molestation  or  hindrance  of  any  kind;  and,  surely, 
if  they  can  maintain  this  position,  the  right  is  undeniable. 

On  the  other  hand,  the  complainants,  the  junior  company,  insist  on 
injoining  the  senior  corporation,  until  it  can  be  ascertained  whether 
the  junior  company  cannot  conduct  their  road,  also,  along  the  same 
bank. 

But  what  authority  has  this,  or  any  other  Court,  to  incumber  the 
exercise  of  a  chartered  right,  with  a  condition  not  found  in  the  char¬ 
ter  ?  Our  prior  charter  gives  us  a  certain  right,  unfettered  with  any 
condition  in  favor  of  any  corporation  which  might  be  subsequently 
called  into  being  by  any  one  of  those  sovereigns  who  gave  the  first 
charter.  Our  right,  under  our  charter,  being,  then,  unfettered  with 
any  such  condition,  is  it  within  the  compass  of  judicial  power,  so  to 
fetter  it  ?  Would  it  not  be  engrafting  a  new  and  substantive  condition 
on  our  charter ;  and  is  it  competent  to  judicial  power  to  do  this  ? 
Would  it  not  be  an  exertion  of  legislative,  not  of  judicial  power? 
The  injunction  is  directly  in  the  teeth  of  our  chartered  rights. 
Our  charter  says  we  may  proceed  along  the  left  bank  of  the 
Potomac  :  the  injunction  says  we  shall  not,  and  the  argument 
which  1  am  now  answering,  asks  the  court  to  continue  this 
obstruction,  till  it  can  be  ascertained  whether  both  we  and  the  junior 
company  cannot  get  along  on  the  same  bank.  The  argument  mis¬ 
conceives  the  true  point  in  debate,  as  raised  by  the  pleadings  :  that 

point  is,  which  of  the  two  companies  has  the  prior  choice  of  route  ? _ 

and  the  injunction  was  originally  asked,  only  till  this  point  could  be 
ascertained.  How  is  this  point  to  be  ascertained  ?  Surely,  by  a  com¬ 
parison  of  the  charters,  only.  If,  on  this  comparison,  it  be  ascertain¬ 
ed,  as  we  insist  it  will,  that  we  have  the  prior  right  of  choice,  there 
can  be  neither  law,  equity,  nor  reason,  in  disturbing  its  exercise,  until 
it  can  be  seen  whether  the  other  party  cannot  get  along,  also  ;  if  they 
can  get  along,  also,  let  them  get  along  when  and  as  they  may ;  but 
do  not  hinder  us  from  getting  along,  according  to  our  right,  for  the 
purpose  of  making  an  enquiry,  in  which  we  have  no  concern.  If  we 
have  the  prior  and  paramount  right  to  proceed  with  our  canal  along 
the  left  bank  of  the  Potomac,  and  to  choose  our  route  according  to  our 
judgment,  what  is  it  to  us  who  else  can  get  along  after  us  ?  The 
surveys,  therefore,  which  arc  asked  for,  arc  matters  with  which,  we 
have  no  manner  of  concern ;  and  let  these  surveys  result  as  they 


10 


may,  they  will  leave  this  question  of  prior  right  precisely  where  it 
stands  at  this  moment,  and  to  be  decided  by  precisely  the  same 
tests.  For,  suppose  the  surveys  to  result  in  the  ascertainment  of  the 
fact,  that  by  each  works  pursuing  the  respective  route  prescribed  by 
the  report  of  the  surveyors,  both  works  may  get  along  on  the  left 
bank  :  is  this  court  to  decide  that  we  shall  take  the  route  prescribed  by 
the  report  ?  Is  it  possible  to  imagine  that  the  court  will  take  such  a 
liberty  with  our  charter  ?  By  our  charter,  we  are  to  choose  our  own 
route  :  where  does  the  Court  of  Chancery  of  Maryland  get  the  right  to 
choose  it  for  us  ?  If  a  route  is  to  be  forced  upon  us,  by  the  authority 
of  this  court,  are  we  not  deprived  of  the  important  franchise  secured 
to  us  by  our  charter,  of  choosing  our  own  route  ?  Would  not  such  a 
decree  be  a  violation  of  our  charter  ?  Would  it  not  impair  the  obliga¬ 
tion  of  our  contract ;  and  if  the  law  of  Maryland,  which  has  created 
the  Rail  Road  Company,  warrant  such  a  decree,  is  not  that  law  un¬ 
constitutional,  on  the  ground  of  its  impairing  the  obligation  of  the  pre¬ 
existing  contract,  arising  from  the  first  charter  ? 

I  can  see  no  possible  benefit  which  can  arise  from  the  proposed  sur¬ 
veys,  in  regard  to  the  only  question  which  is  here  in  dispute.  They 
can  give  the  court  no  facility  in  deciding  a  question  which  depends 
solely  on  the  construction  of  charters,  and  which  must  remain,  after 
all,  to  be  decided  by  this  sole  criterion,  let  the  surveys  eventuate  as 
they  may.  Let  us  suppose  the  surveys  which  are  now  asked,  to  have 
been  made  and  returned ;  and  to  have  ascertained  that,  by  pursuing 
given  routes,  both  works  may  get  along  on  the  left  bank.  It  is  ad¬ 
mitted  that  this  is  all  that  can  be  expected  from  them.  Let  me,  then, 
admit  the  fact  to  be  already  ascertained — -that  both  works  can,  by 
pursuing  given  routes,  get  along  on  the  left  bank.  Does  not  your 
Honor  see  that  the  question  presented  by  these  pleadings  still  remains; 
to  wit,  which  has  the  choice  of  route  :  and  do  you  not  see  that,  after 
all  the  delay  which  these  survey  will  occasion,  you  will  still  be  brought 
back  to  the  very  question  which  now  presents  itself,  and,  in  deciding 
it,  be  forced  on  that  construction  of  the  charter  which  must  be  decid¬ 
ed  the  same  way  after  the  reports,  that  it  must  be  decided  before 
them. 

Why,  then,  should  we  be  delayed  for  years,  by  an  order  for  these 
surveys  and  reports,  which,  after  all,  and  in  any  possible  event ,  must 
leave  the  question  of  right  exactly  where  it  stands  now  ?  for  no  law¬ 
yer  will  pretend  that  the  construction  of  the  charters  can  be  affected 
by  these  surveys  and  reports  ;  let  them  result  in  what  they  may,  the 
charters  must  be  construed  on  their  own  face. 

Our  charter,  the  joint  grant  of  three  sovereigns,  has  assured  us 
that  we  shall  have  the  right  to  occupy  the  left  bank  of  the  Potomac 
with  a  canal,  according  to  our  own  choice  of  route.  Perceiving  that 
this  would  interfere  with  the  prior  rights  of  the  Potomac  Company, 
they  made  provision  for  a  transfer  of  the  rights  of  that  company,  by 
their  own  consent,  and  for  their  own  advantage,  and  they  have  been 
regularly  transferred  by  their  own  consent,  to  the  Chesapeake  and 
Ohio  Canal  Company.  That  rival,  the  only  one  in  existence,  being 


removed,  our  right  to  proceed  along  the  left  bank,  according  to  our 
own  choice  of  route,  became  absolute:  and  it  does  seem  to  us  to  be 
monstrous,  that  a  court  of  one  of  the  sovereigns  from  whom  our  char¬ 
ter  has  proceeded,  shall,  on  the  motion,  and  in  behalf  of  a  newly  creat¬ 
ed  company,  created  by  one  of  the  same  sovereigns  who  gave  us  our 
charter,  debar  us  from  the  exercise  of  the  right  thus  solemnly  pledged 
to  us,  until  it  shall  be  ascertained  by  surveys  and  reports,  whether  our 
exercise  of  this  right  may  not  inteferewith  the  accommodation  of  the 
new  company.  If  this  new  company  has  the  prior  and  paramount 
right,  let  it  be  so  decided  at  once.  If  they  have  not,  it  is  to  us  perfect¬ 
ly  incomprehensible,  how  the  existence  of  their  posterior  right  can  be 
made  to  stand  in  the  way  of  the  exercise  of  ours. 

If  there  be  room  only  for  one  of  the  works,  let  that  Company  take 
it  which  has  the  first  right :  if  there  be  room  for  both,  let  that  Com¬ 
pany  take  the  choice  to  whom  the  prior  right  of  choice  belongs.  All 
that  we  ask  is  a  prompt  decision  of  the  right . 

There  is  no  consideration  of  law  or  of  equity,  and  good  conscience, 
that  can  justify  the  inevitable  delay  of  these  extensive  surveys  and  re¬ 
ports,  except  the  supposition  of  coeval  and  equal  rights  in  both  companies. 
But  to  this,  neither  of  them  pretends.  Each  claims  for  itself,  the 
priority  of  right ;  and  this  question  must  sooner  or  later  be  met,  and  met 
on  a  construction  of  the  charters.  Why,  then,  delay  it  ?  The  delay  must 
be  manifestly  prejudicial  to  that  Company  which  has  the  prior  right : 
and  why  should  this  delay  be  inflicted,  since  the  question  is  just  as 
ripe  for  decision  now ,  as  it  can  ever  be ;  and,  more  especially,  when 
the  decision  of  it  is  invited  hy  the  very  terms  in  which  the  injunction 
was  asked  and  granted  :  to  wit — “  till  the  question  of  prior  right  can 
be  decided.” 

The  delay  may  be  a  very  good  ruse  de  guerre ,  on  the  part  of  that 
Company,  which  is  conscious  of  the  infirmity  of  its  title  :  it  is  a  spe¬ 
cies  of  stratagem,  however,  to  which  it  can  hardly  he  expected,  that 
a  court  of  equity  and  good  conscience  will  lend  itself.  Such  a  court 
will  readily  collect  the  sense  of  the  parties,  as  to  their  own  rights,  by 
observing  which  of  them  it  is  that  asks  the  delay,  and  which  it  is 
that  resists  it. 

We  humbly  insist  that  this  is  the  time,  and  this  the  motion,  on 
which  the  question  of  prior  right  arises,  and  we  do  most  earnestly 
and  respectfully  pray  that  it  may  be  now  decided. 

Objection. — It  is  said,  again,  (and  this  is  another  dilatory  plea,)  that 
this  prior  right  is  a  question  of  law,  and  to  be  decided  only  in  & 
court  of  law. 

Answer. — 1.  Why,  then,  is  it  asked  to  be  postponed  till  the  final 
hearing  ?  For  if  is  to  be  decided  by  your  Honor,  at  the  final  hear¬ 
ing,  is  it  not  the  Court  of  Chancery  which  is  to  decide  it  ? — and  if  it 
be  decided  by  this  same  court,  at  the  final  hearing,  why  shall  it  not 
be  decided  now. 

2.  Is  it  proposed  that  you  shall  ask  the  opinion  of  the  Court  of 
Appeals  on  this  subject,  pendente  lite  :  if,  by  the  laws  of  Maryland, 
you  have  the  power  to  ask  it,  why  not  ask  it  now  ?  Your  decision  of 


12 


it  the  one  way  or  the  other,  which  will  open  the  case  to  an  appeal,  is 
the  only  mode  in  which  you  can  ask  the  opinion  of  the  Court  of  Ap¬ 
peals  ;  and  why  not  ask  it  now,  in  this  mode  ? 

3.  But  again  :  The  parties  have  not,  in  their  bill,  prayed  a  refer¬ 
ence  of  this  question,  to  a  court  of  law.  They  have  not  asked  that 
we  shall  be  enjoined,  until  the  question  can  be  decided  at  law .  The 
bill  contemplates  no  such  course  of  proceeding.  It  manifestly  con¬ 
templates,  that  this  coart  shall  decide  the  question  of  law,  and,  we 
presume,  that  it  is  competent  to  this  court  to  decide  every  question 
of  legal  right  involved,  incidentally,  in  the  proceedings  before  them. 
It  is  not  a  disputed  fact ,  like  a  question  of  coterminous  boundary, 
wherejthe  court  might  enjoin,  till  the  fact  should  be  tried  at  law,  by  a 
jury.  It  is  a  question  of  the  construction  of  charters — like  the  case 
of  Penn  vs.  Lord  Baltimore,  in  the  English  Chancery  :  and  as  per¬ 
fectly  fit  for  this  court,  as  for  any  other.  The  injunction  is  not  ask¬ 
ed,  till  the  question  can  be  tried  at  law .  It  is  not  granted,  till  the 
question  shall  be  tried  at  law ,  but  until  tlie  coming  in  of  the  answer, 
and  notice  to  dissolve.  Time  enough  has  been  already  lost,  by  the 
pending  of  the  injunction  $  and  we  would  rather  have  a  decision 
against  us  now ,  on  the  construction  of  the  charters ,  than  to  have  this 
question  longer  delayed. 

Objection. — It  is  objected  that  we  asked  an  injunction  in  Wash¬ 
ington  county,  until  the  question  of  prior  right  should  be  decided ; 
but,  in  that  suit,  it  is  said  we  have  taken  no  step  to  have  the  ques¬ 
tion  brought  before  a  court  of  law. 

Answer. — The  bill  in  that  case  contemplates  no  reference  of  the 
question  to  a  court  of  law  :  on  the  contrary,  it  proposes  to  have  the 
question  of  prior  right  tested  by  the  short  process  of  an  application 
for  an  injunction,  by  the  court  to  whom  the  bill  was  presented.  But 
what  steps  were  we  expected  to  take,  in  that  case,  to  carry  the  ques¬ 
tion  to  a  court  of  law  ?  It  is  not  a  case  for  an  issue  of  fact ;  for  it  is 
a  question  of  law,  and  not  of  fact.  That  the  court  of  Washington 
has  not,  before  this  time,  pronounced  on  the  question  of  right,  is  no 
fault  of  ours,  nor  have  the  Defendants  in  that  case,  who  are  the  com¬ 
plainants  here,  answered  that  bill  to  this  day,  so  as  to  bring  the 
question  to  a  hearing.  They  have,  therefore,  by  their  own  delay, 
prevented  that  case  from  having  received  a  decision  upon  the  right 
before  this  time. 

Some  obscure  intimation  was  thrown  out,  as  if  your  Honor  was 
expected  to  refuse  to  dissolve  this  injunction,  till  that  was  disposed  of; 
and  as  if  the  que  stion  of  right  was  to  be  held  in  suspense  here , 
until  decided  there.  There  is  no  ground  for  such  a  suggestion,  unless 
the*  opposite  counsel  suppose  that  this  court  is  to  take  part  with 
them ,  in  a  war  of  injunctions  against  the  court  of  Washington  coun¬ 
ty  ;  and  to  hold  up  this  injunction,  as  a  measure  of  belligerent  retali¬ 
ation  on  that  court.  This  case  is  ripe  | for  dissolution ,  on  the  question  of 
prior  right  That  case  is  not  ripe  for  dissolution,  by  the  delay  of  the  De¬ 
fendants  to  answer  that  bill .  If  that  injunction  ought  to  have  been  dis¬ 
solved,  it  is  their  own  fault  that  it  has  not  been  dissolved.  Shall  they 


take  advantage  of  their  own  fault,  then,  to  insist  on  a; continuance  of 
the  injunction  here  ?  But  what  has  this  court  to  do  with  a  proceeding 
in  a  different  tribunal  ?  This  court  has  lull  power  to  acton  all  cases 
before  it :  its  action  is  totally  independent  of  the  Court  of  Washing¬ 
ton  county.  If  this  case  be  ripe  for  decision,  on  the  motion  to  dis¬ 
solve,  this  court  has  as  ample  powers  to  decide  on  the  question  of 
the  construction  of  these  charters,  as  the  court  of  Washington, 
county.  Why  then  wait  for  its  construction  ?  Why  wait  for  a  move¬ 
ment  in  the  cause  in  Washington,  which  the  complainants  them¬ 
selves  have  fail  ed  to  mature  for  decision,  when  thiscase  is  ready,  and 
the  power  of  the  court  ample  to  decide  it. 

I  have  thus,  I  think,  cleared  the  cause  of  all  obstructions  to  a  de¬ 
cision  on  the  question  of  prior  right.  I  have  shewn  that  this  ques¬ 
tion  does  inevitably  rise  on  this  motion.  That  it  is  a  question  aris¬ 
ing  on  the  construction  of  the  charter,  before  the  court,  and,  there¬ 
fore  need  not  wait  for  surveys,  reports  and  evidence,  which  cannot 
change  that  construction  either  one  way  or  the  other  :  that  it  is  a 
question,  so  vital  to  the  cause,  that  the  whole  controversy  rests  upon 
it :  that,  if  we  have  the  prior  right,  the  injunction  ought  to  be  dis¬ 
solved — if  not,  it  ought  to  be  perpetuated. 

To  this  question  of  prior  right,  I  now  proceed.  Wc  claim  it  on 
two  grounds — 

1st.  As  assignees  of  all  the  property,  rights,  and  privileges  of  the 
Potomac  Company,  under  their  charter  of  1784.  (See  Appendix  D.) 

2d.  On  the  ground  of  the  charter  to  the  Chesapeake  and  Ohio  Ca¬ 
nal  Company,  itself. 

1.  As  the  assignees  of  all  the  property,  rights,  and  privileges  of  the 
Potomac  Company,  under  their  Charter  of  1784. 

These  rights  were  transferred  to  us  under  the  authority  of  the  13th 
section  of  our  Charter.  The  effect  of  the  transfer  is  declared,  in  the 
same  section,  to  be  this :  “  And,  thereupon,  the  charter  of  the  said 
Potomac  Company  shall  be,  and  the  same  is  hereby  vacated  and  an¬ 
nulled,  and  all  the  rights  and  powers  thereby  granted  to  the  Potomac 
Company  shall  be  vested  in  the  Company  hereby  incorporated ”  Now,  if 
the  Potomac  Company,  by  virtue  of  their  charter  of  ’84,  had  right 
and  power  to  occupy,  with  a  canal,  the  ground  on  the  left  hank  of 
the  Potomac,  that  right  belongs  to  us  by  the  assignment  of  their 
charter,  and  we  take  it,  with  relation ,  back  to  the  date  of  their  char¬ 
ter — that  is,  the  year  1784;  and  this  injunction,  which  obstructs  us  in 
the  exercise  of  this  right,  ought  to  be  dissolved. 

This  calls  upon  us  to  inquire,  what  were  the  rights  and  privileges 
of  the  Potomac  Company,  as  declared  in  their  charter  ?  They  arc 
found  in  the  4th  Section  of  that  Jaw,  “  to  cut  such  canals,  and  erect 
such  locks,  and  perform  such  other  works  as  they  shall  judge  necessary, 
for  opening,  improving,  and  extending  the  navigation  of  the  said  river, 
above  tide  water,  to  the  highest  part  of  the  North  Branch  to  which 
navigation  can  he  extended,  and  carrying  on  the  sam c,  from  place  to 
place,  from  time  to  lime ,  and  upon  such  terms,  and  in  such  manner  as 
they  shall  think  ft.” 


“To  cut  such  canals,  and  erect  such  locks,  and  perform  such 
works  as  they  shall  think  fit.”  What  limit  is  there  here,  either  to 
the  number  of  canals,  locks,  or  works  which  they  may  erect  ?  None 
but  such  as  may  be  prescribed  by  their  own  judgment ,  “  as  they  shall 
judge  necessary.”  Suppose  that  they  should  think  one  canal  only 
necessary,  and  that  along  the  whole  margin  of  the  river — is  there 
any  thing  in  the  charter  to  restrict  them  in  this  respect?  Nothing. 
The  whole  subject  is  referred ,  exclusively ,  to  their  judgment .  Suppose 
that,  in  experimenting  on  this  subject,  they  should  try  one  plan,  and 
find  it  to  fail;  is  there  any  thing  in  the  charter  to  tie  them  down 
to  their  first  selection,  and  prevent  their  changing  it,  and  trying 
some  other?  Nothing.  The  whole  subject  is  still  referred  to  their 
sole  judgment,  and  they  are  authorized  to  proceed,  from  time  to  time , 
and  in  such  manner  as  they  shall  think  fit. 

There  were,  for  example,  three  modes  of  improving  the  navigation 
of  the  river : 

1.  By  sluices. 

2.  By  dams  and  locks. 

3.  By  continuous  canal  and  still  water  navigation. 

They  had  power  to  try  the  first :  but  suppose  they  find  it  to  fail, 
what  is  there  to  prevent  them  from  trying  the  second  ?  And  we  learn, 
from  the  reports,  that  they  did  this  very  thing,  in  part.  And,  if  they 
found  both  the  first  and  the  second  to  fail,  what  was  there  in  the 
charter  to  hinder  them  from  trying  the  third  ?  Manifestly  nothing. 
The  language  of  the  charter  is  as  broad  as  language  can  be:  the  in¬ 
tention  of  the  Legislature  being  to  tie  them  down  to  no  particular 
mode,  but  to  leave  the  whole  subject  to  their  own  experience ,  observa¬ 
tion ,  and  judgment .  It  is  very  clear  that,  after  the  reports  of  the 
various  Engineers  employed  upon  this  subject,  in  1820  and  ’22, 
(see  Appendix  B)  had  ascertained  that  a  continuous  canal  was  the 
best  mode,  the  Potomac  Company  would  have  resorted  to  this  mode, 
if  their  funds  had  enabled  them  to  do  so.  Suppose  they  had  done  so, 
and  had  been  brought  before  a  court  of  Maryland  on  a  quo  warranto , 
the  presenter  alleging  that  they  were  confined  It)  the  charter,  to  im¬ 
proving  the  bed  of  the  river,  could  the  quo  warranto  have  been  sus¬ 
tained  ?  Is  there  one  word  in  the  charier  which  restricts  them  to 
the  bed  of  the  river?  Not  one.  This  notion  is  inferred  from  gen¬ 
eral  language,  which  does  not  sustain  it;  and  such  an  inference  could 
never  stand,  on  a  quo  warranto ,  against  the  clear,  positive,  and  un¬ 
limited  terms  in  which  their  powers  are  described  in  the  4th  Section. 

Let  us  make  this  comparison. 

The  language  of  the  section,  standing  alone,  certainly  commits  the 
whole  subject  of  the  manner  to  the  judgment  of  the  President  and  Di¬ 
rectors.  Is  there  any  thing  in  the  language  of  any  other  part  of  the  act 
to  place  a  limit  on  the  powers  given  by  the  4th  Section  ?  But,  before  I 
proceed  to  comment  on  the  passages  relied  on,  as  producing  this  effect, 
it  may  be  proper  to  remark,  that  all  that  the  Legislature  had  in  view, 
in  this  charter,  w  as  the  accomplishment  of  one  grand  object — the  ex¬ 
tension  of  the  water  communication,  by  means  of  the  Potomac  and 


15 


its  tributary  streams, from  tide  water,  as  high  up  as  it  could  be  carri¬ 
ed.  The  Legislature  did  not  propose  to  prescribe  the  manner  of  do¬ 
ing  this;  they  were  in  no  situation  to  prescribe  the  manner;  for  it 
required  the  aid  of  Engineers,  of  surveys,  of  comparisons,  and  of 
calculations.  The  Legislature  had  no  such  lights  to  guide  them. 
All  that  they  cared  for  was  the  accomplishment  of  the  object :  the  man¬ 
ner  was  entirely  immaterial  to  them,  and  they  have  left  it  to  the  sole 
judgment  of  the  Company.  They  knew  that,  among  other  manners 
of  improving  the  navigation  of  the  river,  they  might  conclude  to  re¬ 
sort  to  sluice  navigation ;  and  there  are  expressions  in  the  law  which 
shew  that  they  were  aware  that  this  manner  might,  and  probably 
would,  be  chosen  by  the  Company.  Upon  the  hijpothesis  that  this 
manner  might  be  chosen,  the  Legislature  required  and  exacted  that 
canals  should  be  made  around  the  Great  and  Little  Falls  :  points  so 
well  known  to  them  all,  that  they  were  aware  of  the  impossibility  of 
overcoming  the  difficulties  at  those  points,  by  the  means  of  sluices. 
They  do  not  limit  the  number  of  canals  which  the  Company  may 
make.  They  say,  in  effect,  “  make  as  many  of  them  as  you  please,  but 
we  exact  it  of  you,  that,  adopt  what  manner  you  may,  you  shall  adopt 
none  which  shall  relieve  you  from  the  necessity  of  making  canals,  at 
least  around  the  Great  and  Little  Falls.”  And  this  is  the  only  dic¬ 
tation  upon  the  subject  of  manner  which  is  to  be  found  in  the  whole 
act;  and  can  it  be  argued,  with  any  fairness,  that  the  Company  were 
at  liberty  to  make  no  other  canals  than  those  two  ?  This  was  not  the 
contemporaneous  exposition  of  the  act,  for  they  did  make  others,  not 
only  without  question,  but  the  Legislature,  as  to  some  of  them,  sub¬ 
sequently  recognized  the  power,  by  giving  directions  as  to  the  erec¬ 
tion  of  toll-houses  at  them.  The  canal  at  the  mouth  of  the  Shenan¬ 
doah,  and  that  at  Hook’s  Falls,  are  of  this  description.  Now,  it  might 
be  much  more  fairly  argued,  that  the  Legislature,  by  specifying  the 
canals  at  the  Great  and  Little  Falls,  meant  to  prohibit  the  making  of 
all  others,  than  has  been  argued,  on  general  words,  that  the  Le¬ 
gislature  meant  to  restrict  the  Company,  in  their  improvement  of  the 
navigation,  to  the  bed  of  the  river;  and  yet  we  see,  in  the  instances 
just  specified,  that  no  such  restriction,  on  the  number  of  canals,  was 
intended,  from  the  specification  of  the  two  at  the  Great  and  Little 
Falls. 

Now,  suppose  that  the  Potomac  Company  had  become  convinced 
of  the  folly  of  relying  on  sluice  navigation,  at  the  “  Point  of  Rocks,” 
and  other  points  along  the  river,  where  mountains  run  down  to  the 
shore,  and,  by  the  continuation  of  their  bases  under  the  water,  pro¬ 
duce  rocks  and  shallows  ;  and  had  determined  to  make  canals  at  all 
these  places,  what  is  there  in  the  charter  to  prohibit  them  from  doing 
it  ?  Even  if  the  charter  had  contemplated  that  they  should  adhere 
to  the  bed  of  the  river,  generally,  (which  it  does  not,)  still,  it  gives 
them  the  power  of  leaving  that  bed,  whenever,  in  their  judgment,  a 
canal  would  be  better .  They  might,  then,  have  made  canals  at  all  the 
difficult  passes  which  the  complainants,  in  this  case,  have  attempted 
to  secure.  Nor  could  any  purchaser  of  the  lands  along  these  passes, 


It) 


have  bought  these  lands,  discharged  from  this  Jicn  of  the  Potomac 
Company ;  unless  it  can  be  successfully  maintained,  that,  having 
once  selected  sluice  navigation,  at  these  passes,  they  arc  bound  by 
that  first  selection,  and  are  forever  debarred  from  correcting  their 
error,  by  a  canal.  But  there  is  not  one  word  in  the  charter  which 
favors  this  idea.  The  language  of  the  4th  section  clearly  disproves 
it.  Nor  can  it  be  believed,  that  the  Legislature,  intent  as  they  were, 
on  the  accomplishment  of  the  great  object  in  view,  have  intended  to 
defeat  it,  by  binding  down  the  Company,  in  perpetuum ,  to  every 
faux  pas  they  might  commit,  in  experimenting  on  a  work,  then  new 
in  our  country. 

But  what  is  there  in  the  charter  to  justify  the  inference,  that  the 
Legislature  meant  to  tie  the  Company  down  to  the  bed  of  the  river, 
and  thus  to  narrow  the  general  language  of  the  4th  section  ?  To 
maintain  this  proposition,  the  opposite  counsel  rely  on  the  title,  “An 
Act  for  opening  and  extending  the  navigation  of  Potomac  River 
and,  also,  on  the  preamble,  “Whereas  the  extension  of  the  naviga¬ 
tion  of  Potomac  River”  &c.  This  language  is  thought  to  be  syno¬ 
nymous  with  opening  and  extending  the  navigation  of  the  bed  of  the 
Potomac  river,  and  to  prohibit  them  from  leaving  that  bed,  except  at 
the  points  specified,  the  Great  and  Little  Falls.  But  the  inference  is 
wholly  unwarranted  :  for  this  is  the  language  used  on  all  occasions, 
even  when  the  extension  of  the  navigation  of  the  river  was  to  be 
effected  by  opening  canals.  It  is  so  used,  repeatedly,  in  the  law,  and 
the  Legislature  itself  has  thus  fixed  a  clear  meaning  to  the  language. 
So,  in  the  preamble  :  the  “  cutting  canals ,"  erecting  locks,  and  other 
works ,  are  specified  as  among  the  acts  which  may  become  necessary 
for  improving  the  navigation  of  the  river.  So,  also,  in  the  4th  sec¬ 
tion,  “  cutting  canals  and  erecting  locks  ”  is  again  enumerated  among 
the  means  necessary  for  extending  the  navigation  of  the  river.  So, 
in  the  9th  section,  “  that,  for  and  in  consideration  of  the  expenses 
the  said  proprietors  will  be  at,  not  only  in  cutting  the  said  canals, 
erecting  locks,  and  other  ivorks ,  for  opening  the  different  Falls  of  the 
said  river,  and  in  improving  and  extending  the  navigation  thereof." 
So,  in  the  17th  and  18th  sections.  The  latter  section  closes  with 
these  words  :  “  and  in  case  the  said  Company  shall  not  complete  the 
navigation ,  through  and  from  the  Great  Falls ,  to  tide-water,  as  afore¬ 
said,  within  ten  years  after  the  said  Company  shall  be  formed,  then 
shall  all  interest  of  the  said  Company,  and  all  preference  in  their 
favor,  as  to  the  navigation  and  tolls  at,  through,  and  from  the  Great 
Falls,  to  tide-water,  be  forfeited  and  cease.”  Is  it  the  bed  of  the 
river  that  is  meant  here  ?  and  was  it  intended  that  the  navigation 
should  be  carried  through  thebedof  the  same,  at  the  Great  Falls? 

So,  in  the  Maryland  act  of  1790,  section  G,  “And  be  it  enacted, 
that  the  President  and  Directors  of  the  said  Company,  for  the  time 
being,  may,  from  time  to  time,  apply  any  part  of  the  capital  stock  of 
the  said  Company,  and,  also,  the  tolls,  as  they  may  arise,  in  opening, 
improving,  and  extending  the  navigation  of  the  branches  of  the  said 
river,  above  Seneca,  provided  that  no  such  application  shall  be  made, 


until  the  main  river,  from  tide-water ,  is  cleared  to  Fort  Cumberland . 
According  to  the  mode  of  reasoning  on  the  other  side,  this  proviso 
would  demonstrate,  that  the  main  river ,  that  is,  its  bed,  was  to  be 
cleared  from  tide-water  to  Fort  Cumberland  ;  and  the  Great  Falls, 
of  course,  blown  up  with  powder,  or  dislodged  with  crow-bars. 

The  act  of  1784,  section  17,  is  supposed  to  be  decisive  proof  that 
the  Potomac  Company  were  tied  down  to  the  bed  of  the  river  in  their 
improvements  of  its  navigation.  The  last  sentence  of  that  section  is 
supposed  to  contain  this  proof.  That  sentence  is  in  the  following 
words  :  “  That  the  tolls  hereinbefore  allowed  to  be  demanded  and 
received,  at  the  Great  Falls,  are  granted,  and  shall  be  payable,  on 
condition  only,  that  the  said  Potomac  Company  shall  make  the  river 
well  capable  of  being  navigated ,  in  dry  seasons,  from  Payne’s  Falls  to 
the  Great  Falls,  by  vessels  drawing  one  foot  water ;  and  from  the 
Great  Falls  to  tide- water ;  and  shall,  at  or  near  the  Great  Falfs, 
make  a  cut,  or  canal,  25  feet  wide,  and  four  feet  deep,  with  sufficient 
locks,  if  necessary,  each  of  80  feet  in  length,  16  feet  in  breadth,  and 
capable  of  conveying  vessels,  or  rafts,  drawing  four  feet  water  at 
least;  and  shall  make,  at  or  near  the  Little  Falls,  such  canal  and 
locks,  if  necessary,  as  will  be  sufficient  and  proper  to  let  vessels  and 
rafts,  aforesaid,  into  tide-water,  or  render  the  said  river  navigable  in 
the  natural  course .” — (See  Appendix  D.) 

In  the  first  place  it  is  fit  to  remark,  that  this  section  speaks,  first, 
of  making  the  river  capable  of  being  navigated  at  dry  seasons  from 
Payne’s  Falls  to  the  Great  Falls,  and  from  the  Great  Falls  to  tide¬ 
water  ;  and,  in  the  next  place,  that  it  distinctly  presents  the  alter¬ 
natives  of  making  the  river  navigable  by  canals,  and  of  making  it 
navigable  in  its  natural  course;  clearly  indicating,  that  making  the 
river  navigable  by  a  canal  was  making  the  river  navigable  in  the 
sense  of  the  law. 

We  are  asked  whether,  if  the  Potomac  Company  had  resorted  to  a 
continuous  canal,  they  could  have  demanded  tolls  under  this  section, 
the  river  being  dry?  To  which  I  answer,  that,  if  there  were  a  navigable 
canal  along  its  shore,  navigable  in  dry  seasons,  for  vessels  drawing 
one  foot  water — that  Company  could  demand  tolls  ;  because,  in  the 
clear  sense  of  this  law,  the  river  Potomac  is  navigable,  when  a  colla¬ 
teral  canal,  fed  by  it,  is  navigable.  On  the  opposite  construction,  tolls 
could  never  be  demanded  under  this  section  at  all,  because  that  con¬ 
struction  would  require  the  Company  to  make  the  bed  of  the  river  navi¬ 
gable  through  the  Great  Falls,  as  a  pre-requisite  to  the  demand  of  tolls  ; 
a  thing  impossible,  in  its  nature ;  and  the  Legislatures,  themselves, 
show  that  this  was  not  their  sense,  by  requiring  a  canal  at  the  (Great 
Falls.  The  whole  argument  is  an  attempt  to  deduce  a  defect  of  power 
from  a  verbal  hypercriticism,  which  is  refuted  by  the  act  itself,  in 
every  sentence.  It  ir  needless  to  press  this  point  farther,  because 
the  Court  must  be  satisfied,  from  the  obvious  sense  of  these  laws, 
that  the  river  Potomac  is  made  navigable,  when  it  is  effected#  by  ca¬ 
nals  along  the  shore  of  that  river  ;  the  great  object  being  effected,  it  is 
manifest  that  the  Legislature  did  not  mean  to  quarrel  with  the  means. 

2 


18 


The  location  of  the  toll-houses,  at  the  several  falls,  is  supposed  to 
be  inconsistent  with  the  project  of  a  continuous  canal,  and  to  prove 
that  the  tolls  were  paid  merely  for  the  making  of  the  canal. 

What,  then,  was  paid  for  deepening  the  bed  of  the  river,  where  it 
was  deepened  ?  Nothing!  No  inference,  in  favor  of  the  opposite  con¬ 
struction,  can  be  fairly  drawn  from  the  location  of  the  toll-houses. 
They  are  placed,  and  naturally  and  properly  placed,  where  the  great¬ 
est  difficulties  were  to  be  encountered,  and  the  greatest  expense  in¬ 
curred.  They  are  at  the  same  points  at  which  they  would  have  been 
placed,  if  a  continuous  canal  had  been  adopted,  l.  Because  those 
would  still  have  been  the  places  of  the  greatest  difficulty  and  ex¬ 
pense.  2.  Because,  it  being  required  to  have  a  lock-keeper  at  those 
points,  there  would  be  a  saving  of  expense,  in  reducing  the  number  of 
officers,  by  making  the  keeper  of  the  locks  the  gatherer  of  the  tolls  : 
and,  3.  Because,  with  regard  to  the  boat-men,  themselves,  the  tolls 
can  be  more  conveniently  gathered  while  the  boats  are  detained  in 
passing  the  locks,  than  to  stop  them  for  this  purpose  alone  at  any 
other  points. 

The  same  thing  is  done  at  the  New  York  canal,  although  that  is  a 
continuous  canal.  The  toll-houses  are,  there,  at  the  falls  and  locks, 
for  the  very  reasons  of  economy  and  convenience,  which  have  been 
suggested.  To  infer,  from  a  circumstance  so  natural  and  proper,  in 
all  these  respects,  as  the  location  of  the  toll-houses  at  the  locks,  or, 
(what  is  the  same  thing,)  at  the  Falls,  that  the  Legislature  intended 
to  confine  the  navigation  to  the  bed  of  the  river,  and,  by  an  inference 
thus  rashly  and  unwarrantably  draw  n,  to  restrain  the  plain  language 
of  the  section,  in  which  the  powers  are  given,  by  enumeration ,  would 
be  a  species  of  construction,  which  w  ould  come  recommended,  at  least,’ 
by  its  novelty,  to  say  nothing  of  its  intrepidity. 

Objection. — Continuous  canals  were  then  unknown  ;  they  are  a  dis¬ 
covery  of  the  modern  lights  of  science ;  and,  therefore,  connot  be  sup¬ 
posed  to  ha  Ve  been  within  the  contemplation  of  the  Legislature  in 
1784. 

Answer. — 1.  Continuous  canals  were  not  unknown  ;  there  were  se¬ 
veral  such  in  Europe,  and  in  Asia,  for  many  years  before.  Their 
comparative  superiority  over  other  modes  of  improving  the  naviga¬ 
tion  of  a  river,  was,  perhaps,  unknowm  ;  and  this  is  all  that  the  an¬ 
swer,  in  this  case,  is  understood  to  affirm. 

2.  It  may  be  very  true  that  a  continuous  canal  was  not  specifically 
wdtliin  the  contemplation  of  the  Legislature  in  1784.  It  may  be  ad¬ 
mitted  that  sluice  navigation,  with  occasional  canals,  w  as  supposed, 
both  by  the  Legislature,  and  individuals  concerned,  to  be  the  man¬ 
ner  of  improving  the  navigation  of  the  Potomac  which  would  be 
adopted.  But  this  is  not  the  question.  The  question  is,  not  what 
the  individuals  who  composed  the  Legislature  supposed  would  be  the 
plan  adopted  ;  but  whether  the  charter  ties  down,  and  restricts,  the 
corporation  to  that  plan.  It  is  contended  that  it  does  not ;  butthat  the 
terms  6y  which  the  powers  are  conveyed,  are  broad  enough  to  enable 
the  corporation  to  avail  themselves  of  all  the  lights  which  the  pro- 


19 


gress  of  science,  and  their  own  experience  might,  i from  time  to 
time,"  shed  upon  this  subject.  Such  is  manifestly  the  language  of 
the  4th  section  ;  and  if  the  progress  of  science,  and  their  own  expe¬ 
rience,  should  at  last  suggest  the  continuous  canal  as  the  best  mode, 
the  charter  is  broad  enough  to  authorize  its  adoption. 

Objection — Were  the  lands,  in  the  vicinity  of  the  Potomac,  to  re¬ 
main  forever  subject  to  this  incumbrance  ?  Were  the  owners,  and 
those  to  whom  they  might  alien  them,  to  hold  them  always  subject 
to  be  cut  through,  at  the  pleasure  of  the  Potomac  Company  l 

Answer. — The  objection  supposes  that  the  navigation  of  the  Totomac 
was  an  incumbrance,  ajid  a  curse  to  the  valley  through  which  it  passed* : 
whereas,  for  more  than  half  a  century,  it  has  been  considered,  by  the 
best  and  wisest  men  of  our  country,  as  among  the  greatest  of  public 
and  private  blessings;  and  who  can  doubt  that  it  has  been  so  consi¬ 
dered  by  all  the  owners  of  lands  in  the  valley  of  the  Potomac  ?  Which 
among  these  persons  would  not,  at  any  time,  have  compounded  for 
any  supposed  inconvenience,  arising  from  this  incumbrance ,  for  the 
great  advantage  of  a  perfect  and  permanent  navigation  of  this  river  ? 
And,  if  there  were  capricious  individuals,  who  thought  differently, 
does  not  every  man  hold  his  land,  throughout  the  whole  United 
States,  subject  to  the  same  species  of  incumbrance,  to  wit  :  that  it  shall 
be  taken  from  him  at  a  fair  compensation  whenever  it  shall  be  re¬ 
quired  for  the  public  good  ? 

The  original  charter  of  the  Potomac  Company  limited  them  to  the 
accomplishment  of  their,  work  in  a  given  time.  But  thoSe  who  grant¬ 
ed  had  the  power  to  extend  it,  and  did  extend  it ;  and  so  long  as  it 
was  extended  and  kept  up,  it  continued  the  same  powers  as  were  at 
first  imparted. — (See  Ap.  D.) 

Objection _ If  the  Potomac  Company  ever  had  the  power  of  cutting 

a  continuous  canal,,  they  have  forfeited  it,  by  nonuser ,  for  44  years. 

Answer . — This  objection  seems  to  proceed  from  a  misapplication  of  a. 
well-known  principle,  applicable  to  corporations.  A  corporation  may 
forfeit  its  entire  charter ,  through  nonuser  of  its  franchises.  But  when, 
by  its  charter,  these  franchises  may  be  exercised  in  various  alter¬ 
native  modes,  which  it  may  change  at  its  pleasure,  the  experimental 
trial  of  one  mode,  however  long  continued,  has  never  been  held  a  for¬ 
feiture  of  the  other  modes,  the  charter  itself  remaining .  If  the 
corporation  lias  been  endeavoring  to  exercise  its  franchise  in  one  or 
more  of  these  modes,  there  is  no  nonuser  of  the  franchise  which  can 
forfeit  the  charter:  and  the  charter  remaining,  there  can  be  no  partial 
forfeiture  of  any  of  the  means  of  exercising  those  which  still  remain  to  be 
tried,  and  exist  under  the  charter.  If  there  be  any  case  which  establishes 
such  a  principle  of  partial  forfeiture,  we  desire  to  see  it.  It  is  evi¬ 
dent  to  us,  that,  if  the  charter  remains,  all  the  powers  whicli  it  con¬ 
fers  must  remain,  and,  if  it  has  been  forfeited,  then  the  forfeiture  must 
be  declared  by  a  court  of  law,  on  a  quo  warranto . 

Objection. — For  the  purpose  of  showing  that  the  Legislature,  in 
granting  the  Potomac  charter,  did  not  contemplate  a  continuous  ca¬ 
nal,  you  arc  requested  to  compare  the  language  of  the  two  charters — 


20 


that  to  the  Potomac  Company,  ami  that  to  the  Chesapeake  and  Ohio 
Canal  Company. 

Answer . — The  difference  between  the  two  charters  is  precisely  that 
which  ought  to  have  been  expected  from  their  relative  objects.  The 
charter  of  the  Chesapeake  and  Ohio  Canal  Company  contemplated  a 
continuous  canal,  and  no  other  work .  The  Potomac  charter  contem¬ 
plated  no  specific  work — it  looked  to  the  great  object  to  be  accom¬ 
plished,  leaving  the  mode  of  accomplishing  it  wholly  to  the  Company. 
That  the  language  of  two  charters,  thus  differing  in  object,  should  dif¬ 
fer  in  their  language,  is  not  at  all  wonderful ;  nor  does  it  furnish  any 
inference  against  the  powers  of  the  Potomac  Company.  We  never 
contended  that  the  charter  of  the  Potomac  Company  contemplated  a 
continuous  canal  as  the  specific  mode  of  improving  the  navigation  of 
the  river .  If  we  had  so  contended,  we  might  well  be  called  on  to  ac¬ 
count  for  the  difference  of  language  between  that  charter  and  the 
charter  of  the  Chesapeake  and  Ohio  Canal  Company.  But  our  po¬ 
sition  being,  that  the  charter  of  the  Potomac  Company  gives  them  a 
general  power  to  adopt  amj  mode  which  they  thought  best ,  while  the 
charter  of  the  Chesapeake  and  Ohio  Canal  Company  ties  them  down 
to  the  single  mode  of  a  continuous  canal ,  any  difference  in  the  language 
of  the  two  charters,  in  reference  to  this  subject,  must  be  wholly  in¬ 
conclusive  in  fair  reasoning. 

Objection. — The  act  of  1802,  c.  84,  p.  138,  (of  Maryland  alone,)  re¬ 
cites  in  its  preamble,  that  “  whereas  the  whole  object  of  the  Potomac 
Company  had  been  accomplished” — yet,  there  was  no  continuous  ca¬ 
nal  ;  and  this  proves  that  a  continuous  canal  was  not  contemplated — 
the  whole  object  being  declared  to  have  been  accomplished  without  it. 

Answer. — It  proves,  what  we  have  always  admitted,  that  the  great 
desideratum  was  the  extension  of  the  navigation  of  the  Potomac  ;  and 
whether  accomplished  by  the  one  or  the  other  of  the  three  modes  that 
have  been  mentioned,  the  object  would  have  been  equally  accomplish¬ 
ed,  and  the  result  equally  satisfactory  to  the  States.  We  have  never 
supposed  that  any  specific  mode  was  limited  by  the  law. 

Objection . — The  charter  of  the  Potomac  Company  was  forfeited  by 
their  non-execution  of  the  work,  within  the  time  limited  by  their 
charter. 

Answer. — A  charter  which  has  once  taken  effect,  can  never  be  for¬ 
feited  but  by  the  judgment  of  a  court.  The  founders  of  lay  corpora¬ 
tions  are  the  visitors.  The  States  who  granted  the  charter  can 
alone  vacate  it,  by  the  judgment  of  their  courts.  Until  they  shall 
have  done  so,  no  individual  can  treat  it  as  forfeited,  and  act  accord¬ 
ingly.  The  States  who  granted  the  charter,  and  who  had  alone  the 
right  to  vist  the  corporation  ;  who  had  the  exclusive  right  to  sue  out 
a  quo  warranto ,  and  to  vacate  the  charter,  have  not  taken  this  step. 
On  the  contrary,  those  who  alone  could  question  the  legal  continu¬ 
ance  of  the  Company,  have  not  only  not  questioned  it,  but  have  treat¬ 
ed  it  as  a  subsisting  company,  with  full  subsisting  rights.  In  the 
charter  to  the  Chesapeake  and  Ohio  Canal  Company,  they  have  so 
treated  it.  They  have  put  the  very  creation  of  the  new  company  on 


21 


the  condition  that  the  Potomac  Company  shall  consent  to  surrender 
their  charter  to  them.  They  have  required  of  the  new  company,  as 
one  of  the  fundamental  laws  of  their  charter,  that  they  shall  receive 
the  stock  of  the  Potomac  Company  in  payment  of  subscriptions  to 
the  new  stock,  and  that  they  shall  receive  the  evidences  of  debt  due 
from  the  Potomac  Company,  in  part  subscription  to  the  new  stock. 
They  thus  consider  the  Potomac  Company  as  a  subsisting  Company 
pre-occupying  the  ground  by  their  prior  and  exclusive  franchise,  and  de¬ 
clare  that  it  shall  give  way  only  on  their  voluntary  surrender  to  the  new 
Company ,  and  by  becoming  merged  in  the  new  Company,  by  the 
transfer  of  their  stock  and  debts  to  the  new  Company.  While  the 
sovereigns,  then,  on  whose  pleasure  alone  the  coiftinuance  of  the 
charter  of  the  Potomac  Company  depended  thus  treat  it  as  in  full 
life,  shall  a  private  individual,  or  a  private  corporation,  call  upon  a 
Court  in  Maryland  to  regard  it  as  a  non-entity  ? 

I  have  thus  considered  every  argument  that  has  been  urged: 

1.  To  show  that  the  Potomac  Company  were  restricted  to  the 
bed  of  the  river. 

2.  To  show  that,  if  they  ever  had  a  right  to  have  a  continuous 
canal,  they  have  forfeited  it  by  nonuser. 

3.  To  show  that  the  Company  had  forfeited  its  charter  before  the 
present  Company  came  into  existence. 

I  think  it  has  been  shown  that  these  objections  are  wholiy  unten¬ 
able. 

That  that  Company  was  in  full  life  until  they  surrendered  their 
charter  to  the  Canal  Company. 

That,  by  the  4th  section  of  that  charter,  all  the  means  of  extend¬ 
ing  the  navigation  of  the  Potomac  were  still  open  to  them — unlimit¬ 
ed,  except  by  their  own  judgment. 

That  they  had  it,  therefore,  in  their  power,  under  their  charter,  to 
have  made  a  continuous  canal,  up  to  the  time  of  the  surrender  of  their 
charter  to  the  Chesapeake  and  Ohio  Canal  Company,  on  the  15th  of 
August  1828. 

That,  by  this  surrender,  under  the  operation  of  the  charter  of  the 
Chesapeake  and  Ohio  Canal  Company,  this  power,  possessed  by  the 
Potomac  Company,  became  eo  instanti  the  power  of  the  former 
Company. 

So  that  there  was  never  a  moment  of  time  when  the  ground  was 
not  prc-occupicd  by  the  Potomac  Company,  or  their  assignees — the 
Chesapeake  and  Ohio  Canal  Company. 

The  Chesapeake  and  Ohio  Canal  Company  are  thus  the  purchasers 
of  all  the  rights  of  the  Potomac  Company,  for  valuable  consideration. 
For  valuable  consideration — 

1.  Because  they  have  taken  their  stock  as  a  part  of  the  new 
capital. 

2.  Because  they  have  assumed  their  debts,  in  receiving  them  in  pay¬ 
ment  of  subscriptions  for  stock  in  the  new  company. 

The  whole  course  of  this  transaction  was  open,  public,  and  iiolori- 


22 


ous.  The  several  acts  ot*  1824,  establishing  the  Canal  Company , 
had  given  notice  to  the  world  that  this  transfer  was  to  take  place. 
They  had  announced  the  conditions  and  considerations  for  which  it 
was  to  take  place,  and  they  had  announced,  by  the  same  public  acts, 
that  the  legal  consequence  of  this  transfer  would  be,  that  the  Chesapeake 
and  Ohio  Canal  Company  would,  thereby,  stand  seized’  of  all  the 
property,  rights ,  and  privileges  of  the  Potomac  Company . 

The  Rail  Road  Company  had  thus  fair  notice  of  the  whole  course 
of  this  proceeding,  and  of  its  consequences. 

If  they  are  correct  in  the  position,  that  they  commenced  the  acquisi¬ 
tion  of  their  titles  on  the  Potomac,  before  the  Chesapeake  and  Ohio 
Company  had  a  legal  existence  or  legal  rights,  they  encounter  the 
Potomac  Company,  which,  it  cannot  be  denied,  had  an  existence  long 
before,  and  had  all  the  legal  rights  which  their  charter  then  gave ; 
and  since  these  legal  rights  continued  down  to  the  transfer,  to  the 
Chesapeake  and  Ohio  Company,  there  never  was  an  instant  when 
the  complainants  could  have  gone  upon  the  ground  without  meeting 
the  pre-emptive  right  of  the  Potomac  Company,  or  of  their  assignees 
and  successors.  As  taking  the  place,  therefore,  of  the  Potomac  Com¬ 
pany,  we  claim  the  prior  right  of  selecting  our  route  along  the  shores 
of  the  Potomac,  and,  being  the  prior  right,  it  is  one  which  the  acts 
relied  on  by  the  complainant  cannot  disturb. 

II.  We  claim  this  prior  right,  as  existing  under  the  charter  of  the 
Chesapeake  and  Ohio  Canal  Company  itself,  independent  of  the 
derivative  rights  which  it  holds  under  the  Potomac  Company. 

1.  As  a  right  created  and  existing  in  our  behalf,  prior  to  our  incor¬ 
poration,  by  the  joint  compact  of  Maryland,  Virginia,  and  the 
United  States  ;  aright, in  abeyance ,  ’till  our  incorporation  ;J)«t  even, 
in  that  condition,  placed  beyond  the  power  of  recal  by  the  act  of  any 
one  of  the  parties  to  the  compact. 

2.  As  a  right  which  had  actually  attached,  and  become  vested  by 
our  incorporation,  prior  to  any  of  the  acts  on  which  the  complainants 
rely  as  founding  their  inceptive  rights. 

1.  The  charter  of  the  Chesapeake  and  Ohio  Company  was  a 
compact  between  the  States  of  Maryland,  Virginia,  and  the  United 
States,  represented  by  the  Congress  and  the  President  of  the  United 
States.  The  various  acts  which  confer  this  charter  are  not  separate 
and  independent  acts  of  legislation  by  these  several  sovereigns,  but 
they  are,  on  their  face,  joint  and  dependent  acts,  resulting  in  a  com¬ 
pact  flowing  from  the  united  consent  of  all.  Virginia,  for  example, 
does  not  legislate  for  herself,  on  the  foundation  of  her  own  separate 
sovereignty,  and  place  the  efficiency  of  the  act  on  her  own  power. 
On  the  contrary,  she  makes  her  act  to  depend  on  the  concurrence  of  the 
other  sovereigns  and  parties  concerned.  The  1st  section  is,  “  that  so 
soon  as  the  Legislatures  of  Maryland  and  Pennsylvania,  and  the  Con¬ 
gress  of  the  United  States,  shall  assent  to  the  provisions  of  this  act, 
and  the  Potomac  Company  shall  have  signified  their  assent  to -the 
same,  by  their  corporate  act,”  &c.  This  act,  then,  was  in  the  character 


23 


of  a  proposition  offered  to  the  other  Legislatures  for  their  acceptance, 
assent,  and  confirmation.  It  is  so  considered  by  the  State  of  Mary¬ 
land,  who,  after  reciting  the  act,  say  “  Therefore ,  be  it  enacted  by  the 
General  Assembly  of  Maryland ,  That  the  said  act  of  the  General  As¬ 
sembly  of  Virginia  he,  and  the  same  is  hereby  accepted ,  assented  to , 
and  confirmed,”  and  thus  ratify  it  on  a  condition  introduced  by  them - 
selves,  that  is,  they  introduced  a  new  term  into  the  proposed  contract. 
“  Be  it  further  enacted  and  declared.  That  the  said  act  of  Virginia 
has  been  accepted  and  confirmed  by  the  Legislature  of  Maryland,' on 
the  express  condition ,  that  the  act  of  Congress,  contemplated  by  the 
twenty-first  section  of  the  Virginia  act,  shall  direct  and  provide  some 
safe  and  practicable  mode  whereby  such  lateral  canal  or  canals  may 
he  secured  to  the  State  of  Maryland,  and  whereby,  also,  it  may  be 
determined  whether  such  lateral  canal  or  canals  will  injure  the  said 
Chesapeake  and  Ohio  Canal,  within  the  meaning  and  intention  of  the 
said  twenty-first  section  of  the  Virginia  act.” 

Then  comes  the  assent  of  Congress  to  both  acts.  The  title  of  this 
act  is  “  An  act  confirming  an  act  of  the  Legislature  of  Virginia,  en¬ 
titled  ‘  An  act  incorporating  the  Chesapeake  and  Ohio  Canal  Com¬ 
pany,  and  an  act  of  the  State  of  Maryland,  confirming  the  same.” 

Again,  in  the  year  1826,  the  State  of  Maryland  wishing  to  modify 
the  compact  thus  formed,  but  conscious  that  she  could  not  do  it,  by 
her  single  authority,  made  a  proposition  to  that  effect  by  an  act  to  > 
amend  the  act  incorporating  the  Chesapeake  and  Ohio  Canal  Com¬ 
pany.  The  first  section  of  this  act  places  the  amendments  which 
it  proposes  on  the  express  condition,  “That  this  act  receive,  in  like 
manner,  the  assent  of  the  necessary  parties ”  and  the  4th  section  is  in 
these  words,  66  And  be  it  further  enacted ,  That  this  act  shall  commence 
and  be  in  force  as  soon  as  it  shall  have  received  the  assent  of  the  Legis¬ 
lature  of  Virginia,  of  the  Congress  of  the  United  States,  and  of  the 
Potomac  Company ” 

Then  Virginia  assents  to  the  change,  by  her  act  of  26th  February, 
1827. 

Congress,  in  like  manner,  gives  its  assent,  by  the  3d  section  of 
of  the  act  of  23d  May,  1828. 

And  the  Potomac  Company  gives  its  assent,  by  their  resolutions  of 
the  10th  July,  1828. 

The  State  of  Maryland  proposed  other  modifications  which  were, 
in  like  manner,  put  on  the  condition  of  their  receiving  the  assent  of 
the  other  two  parties:  and  they  all  did,  in  like  manner,  receive  that 
assent. — (See  Appendix.) 

It  is,  then,  a  compact ,  to  which  the  States  of  Maryland  and  Vir¬ 
ginia,  the  United  States  of  America,  and  the  Potomac  Company,  arc 
all  parties,  each  contributing  a  portion  of  its  sovereignty  and  sepa¬ 
rate  rights,  for  the  creation  of  a  corporation  for  the  common  good 
of  the  whole.  It  is  not  the  creation  of  a  monied  corporation,  like  a 
hank,  for  its  own  emolument.  It  is  the  creation  of  a  corporation  to 
effect  a  great  national  object,  for  the  good  of  the  whole.  What  is 


24 


that  object  ?  It  is  answered  in  the  Preamble.  “  Whereas,  a  navi¬ 
gable  canal,”  &c.,  and  after  describing  its  direction,  &c.  &c.,  conti¬ 
nues,  66  will  be  a  work  of  great  profit  and  advantage  to  the  People  of 
“  this  State,  and  the  neighboring  States,  and  may,  ultimately,  tend  to 
“  establish  a  connected  navigation  between  the  Eastern  and  the  West- 
“  ern  waters,  so  as  to  extend  and  multiply  the  means  and  facilites  of 
“  Internal  commerce  and  personal  intercourse  between  the  two  great 
“  sections  of  the  United  States,  and  to  interweave  more  closely  all 
“  the  mutual  interests  and  affections  that  are  calculated  to  consoli- 
«  date  and  perpetuate  the  vital  principles  of  Union,”  &c.,  &c.  [See 
Preamble  to  the  incorporating  act  of  Virginia,  passed  January  27, 
1824.]  Here,  then,  is  a  great  common  object  to  be  accomplished  by 
the  common  consent  of  all  the  sovereigns  interested — to  be  accom¬ 
plished  by  means,  which  neither  separately  possessed  ;  by  means  of 
the  river  Potomac,  which  neither  separately  possessed  :  but  which  was 
the  common  property  of  Maryland  and  Virginia,  so  far  as  it  divided 
their  territory,  and  of  the  United  States,  so  far  as  it  constituted  a 
part  of  the  District  of  Columbia.  Neither  of  these  parties  could,  by 
its  single  authority,  authorize  a  dam  to  be  constructed  across  the  Po¬ 
tomac,  for  the  purpose  of  supplying  a  feeder  to  the  canal,  without 
committing  a  trespass  on  the  other. 

Again  :  It  was  not  certain  at  the  date  of  the  charter  of  1 824,  whether 
the  canal  would  run  on  one  side  or  the  other  of  the  river,  or  whether  it 
might  not  be  most  advantageous,  to  cross,  occasionally,  on  aqueducts, 
and  to  use  both  sides.  To  give  the  canal  every  advantage,  it  requir¬ 
ed  the  use  of  both  sides,  at  the  discretion  of  the  Company,  under  the 
advice  of  their  Engineers  :  hence  the  concurrence  of  both  the  States 
was  necessary  to  give  to  the  object  all  the  advantages  contemplated. 
But  neither  Maryland  nor  Virginia  could  run  the  canal  into  the 
District  of  Columbia ;  hence  it  was  necessary  to  have  the  concur¬ 
rence  of  Congress ;  nor  could  those  States  make  a  compact  except 
under  the  sanction  of  Congress  ;  hence,  also,  it  was  necessary  to  call 
for  that  sanction. 

But  as  one  State  might,  by  its  Legislature  or  its  Courts,-  disturb  the 
action  of  the  institution,  it  became  necessary  for  the  stability  of  the 
enterprize  to  place  it  beyond  the  power  of  recall,  at  the  pleasure  of 
any  one  of  the  parties  to  it :  hence  it  was  made  to  assume  the  form 
of  a  compact ,  irrevocable,  except  by  the  consent  of  all  the  parties  to 
it.  That  it  is  a  compact ,  is  demonstrable  by  every  test  that  can  be 
applied  to  it.  The  parties  mutually  consulted  each  other  at  every 
step.  Every  measure  was  in  the  form  of  a  proposition,  and  was,  upon 
its  face,  to  have  no  effect  till  assented  to  by  the  other  parties:  and 
the  charter  is  now  the  result  of  mutual  consultation,  mutual  conces¬ 
sion,  and  mutual  agreement,  for  an  object  of  mutual  good. 

What  is  a  compact  ?  What  definition  can  be  applied  to  it,  that 
will  not  fit  this  case  ?  Is  it  the  agreement  of  two  or  more  minds  in 
an  object  of  common  interest,  which  is  to  be  done,  or  forborne,  and 
which  can  be  done  or  forborne  only  in  virtue  of  such  agreement? 


25 


Every  feature  occurs  in  this  case;  the  object,  is  one  of  common  in¬ 
terest,  could  be  accomplished  only  by  an  act  of  all  :  a  mutual  consi« 
deration  is  paid  by  each  for  the  mutual  advantages  gained  by  each . 
Maryland  and  Virginia  impart  to  the  corporation  to  be  created  va¬ 
luable  portions  of  their  eminent  domain,  to  wit^ 

The  right  to  use  the  waters  of  the  river : 

The  right  to  use  the  individual  property  on  both  sides  of  the  river 
as  the  necessities  of  the  canal  might  require: 

The  right  of  exacting  tolls  on  the  one  side,  and  on  the  other  :  and 
in  consideration  of  the  advantage  to  be  derived  from  the  canal  by 
those  mutual  concessions  of  the  States,  Congress  grant  to  botli  the 
right  to  run  lateral  canals,  from  the  main  stem,  through  any  part  of 
the  District  of  Columbia.  And  the  Potomac  Company  surrender 
their  charter  to  the  new  Company  in  consideration  of  the  advantages 
which  they  were  to  derive  from  their  participation  in  its  profits. 
Thus,  as  between  the  two  States,  the  United  States  and  the  Potomac 
Company,  the  charter  is  an  executory  compact,  founded  on  mutual 
consent,  and  on  valuable  consideration,  paid  all  around ;  and  from  the 
circumstance  of  its  being  a  compact,  these  consequences  result : 

1st.  That  it  is  irrevocable,  except  by  the  consent  of  all  the  con¬ 
tracting  parties. 

2d.  That  no  one  State  can,  by  any  subsequent  grant  to  another,  in 
the  slightest  degree  narrow  or  interfere  with  the  rights  granted  by 
that  compact.  For  to  say  that  any  one  State  can  do  this,  would  be 
to  say,  that  any  one  party  to  a  compact  may  depart  from  it  at  plea¬ 
sure  :  It  would  be  a  partial  revocation  to  narrow  our  right,  granted 
by  the  previous  charter ;  and  a  power  to  revoke,  partially,  is  a  power 
to  revoke  in  toto. 

Objection . — This  charter  is  not  a  compact — nothing  more  than  a 
permission  being  given,  by  these  sovereigns,  to  pass  through  their  res¬ 
pective  territories. 

Answer. — 1.  This  is  changing  the  terms,  without  changing  the 
substance  of  the  proposition.  For,  if  these  permissions,  granted  by 
these  several  sovereigns,  were  reciprocally  the  consideration  for  each 
other,  it  is  as  much  a  matter  of  compact,  so  far,  as  if  the  compact 
were  more  comprehensive. 

2.  But  it  is  not  a  mere  permission  to  pass  through ;  it  is  a  permis¬ 
sion  to  pass  through  clothed  with  various  attributes  of  imparted  so¬ 
vereignty  ;  it  subjects  the  lands  through  which  they  may  determine 
to  pass,  to  compulsive  acquisition  for  the  use  of  the  canal ;  it  gives 
them  the  power  of  collecting  tolls,  for  passage,  within  the  respective 
territories  of  these  sovereigns  ;  it  declares  the  franchise  real  proper¬ 
ty,  and  exempts  it  from  taxation  in  all  time  to  come.  This  is  not  a 
mere  permission  to  pass  ;  it  is  a  right  of  passage,  clothed  with  great 
and  valuable  privileges  ;  it  is  a  right  to  pass  along  the  shores  of  the 
Potomac,  and  appropriate  to  the  use  of  the  canal  the  waters  of  that 
river,  and  all  its  tributary  streams,  together  with  a  right  of  compul¬ 
sive  acquisition  of  the  soil ;  and  all  this  as  a  matter  of  compact 


26 


among  the  sovereigns,  and  as  a  matter  of  compact  wholly  irrevoca¬ 
ble,  in  part  or  in  whole,  by  any  one  of  the  parties  to  it. 

Will  it  be  said  that  this  was  not  a  compact,  because  there  were  no 
negociations,  and  nothing  in  treaty  form,  between  these  sovereigns  ? 
This  would  be  to  al^ge  that  a  State  cannot  contract  by  its  laws.  But 
that  a  State  may  so  contract,  has  been  established  in  an  infinite  num¬ 
ber  of  cases.  # 

In  Hunter  vs.  Fairfax,  the  State  of  Virginia  did  contract,  in  the 
form  of  a  law,  on  the  subject  of  the  Northern  Neck. 

The  State  of  Georgia  contracted,  in  the  form  of  a  law,  in  the  Ya¬ 
zoo  case  of  Fletcher  vs.  Peck,  6  Cranch,  87. 

The  State  of  Virginia  and  Kentucky  contracted,  in  the  form  of  a 
law,  by  the  compact  of  1789,  as  recognized  in  the  case  of  Green  vs. 
Biddle,  8  Wheaton,  p.  1 ;  and  that  a  charter  is  a  compact,  though  in 
the  form  of  a  law,  is  recognized  and  admitted  by  the  Supreme  Court 
in  the  case  of  Dartmouth  College  vs.  Woodward,  in  4  Wheaton,  518* 
and  arguendo  in  the  cases  of  Jewett  vs.  Taylor,  9  Cranch,  43,  and 
the  town  of  Pawlet  vs.  Clarke,  9  Cranch,  292. 

We  contend,  therefore,  that  the  charter  of  the  Chesapeake  and  Ohio 
Canal  Company  is  a  compact  among  these  sovereigns,  and  that,  there¬ 
fore,  whatever  rights  it  does  grant,  are  unalterable  by  the  act  of  any 
one  of  these  sovereigns. 

Let  us  now  proceed  to  inquire  whether  this  charter  granted  a  prior 
right  which  was  in  full  force  at  the  time  that  the  acts  were  done,  on 
which  the  complainants  rest  their  prior  right. 

I  contend — 

1.  That,  as  soon  as  the  charter  of  the  Chesapeake  and  Ohio  Canal 
Company  took  effect,  in  the  year  1824,  and  prior  to  the  organization 
of  the  Chesapeake  and  Ohio  Canal  Company,  there  was  a  prior  right 
to  choose  their  route,  created  in  behalf  of  the  company,  when  it  should 
come  into  existence  ;  which  prior*right  was  irrevocable  by  the  act  of 
any  one  of  the  sovereigns. 

That  this  prior  right  existed,  independent  of  any  acts  to  carry  it 
into  effect. 

*That  this  right,  though  in  abeyance  (to  use  a  technical  term)  till 
the  company  was  formed,  was  beyond  recall,  and  could  not  be  invad¬ 
ed  by  either  of  the  sovereigns,  or  by  any  grant  of  cither  of  them,  to 
any  other  company  or  individual. 

That  this  was  a  subsisting  right,  down  to  the  organization  of  the 
company,  and  that,  on  the  instant  they  became  a  corporation,  by  the 
subscription  of  the  capital,  it  became  a  vested  right,  with  relation 
back,  in  point  of  time,  to  the  date  of  the  charter  ;  and  that  all  inter¬ 
vening  and  interfering  claims  must  give  way  to  this  prior  right. 

2.  I  contend  that,  if  it  were  necessary  that  the  Chesapeake  and 
Ohio  Canal  Company  should  have  come  into  corporate  existence  before 
this  prior  right  could  arise  in  their  behalf,  they  did  come  into  corpo¬ 
rate  existence,  and,  consequently,  this  prior  right  did  arise  before  any 
of  these  acts  were  done  by  the  complainants,  on  which  they  rely  as 


27 


giving  them  the  preference  of  route  ;  and  that  the  answer,  in  averring 
this  fact,  is  responsive  to  the  bill  in  a  matter  of  fact,  and  must  there¬ 
fore  be  taken  as  true. 

I  shall  contend  that  this  right  existed  independent  of  any  acts  to 
carry  it  into  execution,  such  as  location,  contracts  ..with  the  owners  of 
lands,  or  writs  of  ad  quod  damnum . 

That  if  a  location  were  necessary  to  designate  the  choice  of  route, 
in  order  to  constitute  a  prior  and  exclusive  right,  such  a  location  was 
made,  and  was  known  to  the  complainants  before  they  commenced 
their  operations  of  location,  purchase,  and  inquisition. 

1.  By  the  charter  itself,  and  before  the  organization  of  the  com¬ 
pany,  a  prior  right  to  the  choice  of  route  was  granted,  which  was  in 
abeyance,  but  irrevocable  till  the  formation  of  the  company,  but  which 
attached  at  the  instant  of  their  formation,  and  excluded  all  interven¬ 
ing  and  interfering  claims. 

To  present  this  point  clearly  to  the  Court,  let  us  suppose  that,  in 
1825,  when,  by  the  consent  of  all  the  parties  to  this  compact,  the 
charter  became  complete,  there  had  been  a  corporation  in  existence  to 
take  the  rights  given  by  the  charter ;  and  let  us  inquire  what  rights 
they  would  have  taken  by  it  ?  These  rights  are  to  be  ascertained : 

1.  By  the  preamble  which  explains  the  object  of  the  charter. 

2.  By  the  4th  section,  which  enumerates  the  powers  of  the  intended 
corporation. 

3.  By  the  15th  and  19th  sections,  which  authorizes  the  compulsive 
right  of  passage  for  the  canal. 

] .  The  preamble  sets  out  the  object  of  the  charter ;  the  construction 
of  a  continuous  canal  from  tide  water  of  the  river  Potomac,  in  the 
District  of  Columbia,  to  the  mouth  of  Savage  Creek,  &e.  iitobe  fed ,  in 
its  course  on  the  east  side  of  the  mountain,  by  the  river  Potomac  and  the 
streams  which  empty  therein This  is  the  work  which  was  contem¬ 
plated  ;  and  its  location  was  required  to  be  such  as  that  it  might  be 
fed  by  the  river  Potomac  and  the  streams  which  empty  therein.  The 
valley  of  the  Potomac  is,  therefore,  indicated,  by  the  charter  itself,  as 
being  the  bed  of  the  intended  canal. 

The  powers  necessary  to  effect  this  object,  are  given  by  the  4th, 
15th,  and  19th  sections  of  the  law.  1  am  now  supposing,  for  the  sake 
of  argument,  the  company  in  existence  at  the  date  of  the  act ;  and  it 
is  manifest  that  they  would  have  taken  immediately  the  powers  there¬ 
in  enumerated.  What  are  these  powers  ? 

The  4th  section  gives  them  the  power  ( a  present  power  on  the  sup¬ 
position  that  the  company  was  then  in  existence)  to  cut  canals,  erect 
dams,  open  feeders,  construct  locks,  and  perform  such  other  works 
as  they  shall  judge  necessary  and  expedient  for  completing  the  canal 
hereinbefore  mentioned  and  described. 

The  15th  section  opens  thus  :  ‘‘And  whereas  it  is  necessary  for  the 
making  of  the  said  canal,  locks,  dams,  ponds,  feeders,  and  other 
works,  that  a  provision  should  be  made  for  condemning  a  quantity  of 
land  for  the  purpose,  Be  it  enacted ,  That  it  shall,  and  may  be  lawful, 


28 


for  the  said  President  and  Directors,  &c.  to  agree  with  the  owners  of 
any  land  through  which  the  said  canal  is  intended  to  pass,”&c.;  and, 
in  case  of  disagreement,  it  authorizes  the  company  to  proceed,  by  a 
writ  of  ad  quod  damnum ,  to  condemn ;  and  declares  that,  on  the  pay* 
ment  of  such  valuation,  the  company  shall  be  seized  of  such  land  as 
of  an  absolute  estate  in  perpetuity. 

The  1 9th  section  provides  if  that  whenever  it  shall  become  neces¬ 
sary  to  subject  the  lands  of  any  individual  to  the  purposes  provided 
for  in  this  act,  and  their  consent  cannot  be  obtained,  it  shall  be  law¬ 
ful  for  the  company  to  enter  upon  such  lands,  and  proceed  to  the  exe¬ 
cution  of  such  works,  as  may  be  requisite ;  and  that  the  pendency  of 
any  proceedings,  in  any  suit  in  the  nature  of  a  writ  of  ad  quod  damnum , 
or  any  other  proceedings ,  shall  not  hinder  or  delay  the  progress  of  the 
work.” 

Now,  is  it  not  manifest  that  the  route  of  the  canal  was,  by  these 
sections,  committed  to  the  choice  of  the  Company,  in  the  then  exist - 
ing  state  of  things  ?  What  was  the  existing  state  of  things  at 
that  time  ?  There  was  no  other  rival  corporation  in  the  field, 
of  the  one  character  or  the  other — no  canal  company,  no  rail 
road  company— -nor  turnpike  company — there  were  only  individual 
proprietors  lying  along  the  shores  of  the  Potomac.  But  their  lands 
had  been  subjected  to  the  right  of  passage  secured  to  this  great 
public  corporation,  in  the  modes  prescribed  by  the  act ;  and  with 
regard  to  the  right  of  passage,  they  had  taken  the  place  of  the  sove¬ 
reigns  under  whom  these  individuals  held.  These  sovereigns  holding 
the  eminent  domain,  had  a  right,  themselves,  to  condemn  any  portion 
of  these  lands  of  individuals  for  a  public  use.  This  right  they  had 
imparted,  by  this  charter,  to  the  Chesapeake  and  Ohio  Canal  Com¬ 
pany.  The  company  took  the  place  of  these  sovereigns,  quoad  hoc9 
and  their  right  could  be  no  more  disputed  than  the  right  of  these 
sovereigns  themselves,  so  far  as  the  route  they  might  select  called 
for  the  exercise  of  this  eminent  domain. 

Was  it  necessary  to  the  existence  of  this  right  of  selection  that 
they  should  locate  the  route,  or  purchase  the  land  or  condemn  it  ?  It 
was  indeed,  necessary,  on  exercising  this  right,  that  they  should  do 
these  things.  But  was  it  necessary  to  the  existence  of  the  right  of 
selection  itself,  that  they  should  do  these  things  ?  Are  not  the  right,  and 
the  exercise  of  the  right,  different  things  ?  The  right  is  the  previous 
existence — the  exercise  is  a  mere  consequence  of  the  pre-existent  right. 
Your  Honor,  for  example,  has  the  right  of  deciding  this  cause, 
according  to  your  judgment  :  can  gentlemen  deny  the  existence  of 
your  right,  until  you  shall  have  exercised  it,  and  shewn  by  your 
decision,  how  you  will  exercise  it  ?  Whether  you  decide  it  the  one 
way  or  the  other,  or  do  not  decide  it  at  all,  still  the  right  is  equally 
clear  and  indisputable. 

Again,  the  right  of  eminent  domain  is  in  the  State.  This  right, 
and  its  exercise  arc,  certainly,  very  different  things.  If  the  charter 
had  limited  a  time,  within  which  the  right  should  be  exercised,  and 


29 


had  declared  that  if  not  exercised  within  this  time,  by  the  Chesapeake 
and  Ohio  Canal  Company,  it  might  be  exercised  by  any  other  cor¬ 
poration  that  might  be  called  into  existence ;  then,  indeed,  after  the 
lapse  of  that  time,  having  failed  to  exercise  it,  any  other  corpora¬ 
tion,  properly  authorized,  might  supersede  them.  The  charter  has 
done  this.  It  says,  in  the  20th  section,  •  they  shall  begin  the  work 
within  two  years  after  they  shall  have  been  formed ;  that  they  shall 
complete  one  hundred  miles  of  the  canal  within  five  years  ;  and  that 
the  entire  eastern  section  shall  he  completed  in  twelve  years ;  and 
that,  if  they  fail,  in  either  of  these  particulars,  the  charter  shall  he 
forfeited.  Bift,  within  these  limits,  the  right  of  choosing  the  route 
is  a  full,  subsisting,  prior  right.  The  right  is  the  right  of  choosing 
the  route ;  and  prior,  because  first  in  time  :  granted  when  there  was 
no  rival  corporation  in  the  field — no  competition. 

Now,  with  this  right,  taking  its  date  in  the  year  ]  825,  a  right 
flowing  from  the  first  compact  of  all  these  sovereigns,  and  consecrated 
by  that  compact,  was  it  competent  to  either  of  them,  singly,  to  consti¬ 
tute  another  corporation  with  power  to  invade  the  right,  and  take  it 
from  the  first  grantees  ? 

The  analogy  attempted  to  be  borrowed  from  general  land  warrants, 
is  entirely  fallacious.  The  warrants  themselves  give  no  priority  of 
right  to  locate  :  all  the  holders  of  general  land  warrants  are  on  a 
perfect  equality,  and  because  there  is  no  priority  among  the  holders 
of  the  land  warrants,  it  is  the  act  of  location  which  creates  the 
prior  right,  and  that  by  positive  legislation.  Here,  on  the  contrary, 
it  is  the  grant  which,  proprio  vigore ,  creates  the  prior  right,  and  this 
totally  independent  of  any  act  of  location.  It  is  asked,  whether  the 
holder  of  a  general  land  warrant  shall  hold  it  up  for  an  indefinite 
length  of  time,  and  prevent  the  holder  of  another  land  w  arrant  from 
locating  it,  on  the  assertion  of  prior  right?  No,  I  answer  again  :  be¬ 
cause  it  was  never  pretended  that  a  general  warrant  gave  any  such 
prior-  right.  But  here  the  charter  does  give  the  prior  right,  and  as 
to  the  time  for  its  location,  that  is  limited  by  the  charter  in  the  man¬ 
ner  that  has  been  mentioned.  The  only  analogy  to  be  borrowed  from 
land  warrants,  is  not  from  general  land  warrants,  hut  special  land 
warrants,  which  do  give  title ,  which  no  general  land  warrant  can,  ex¬ 
cept  by  prior  location.  For  here  our  rights  are  limited  to  the  valley 
ot  the  Potomac,  and  its  tributary  streams.  It  is,  then,  a  prior  right, 
located  by  our  charter  itself  to  the  valley  of  the  Potomac.  It  is  a 
right  which,  by  the  charter  itself,  is  made  dependent  on  the  Potomac, 
the  vital  current  that  is  to  supply  it;  and  is  thus,  so  special,  as  to  de¬ 
dicate  to  our  use,  so  far  as  the  selection  of  our  route  requires,  the 
whole  valley  of  that  river,  on  both  shores. 

I  hold  it  to  be  clear,  then,  that,  if  the  Company  had  been  in  exist¬ 
ence  in  1825,  when  the  charter  became  complete  by  the  consent  of 
all  the  parties,  they  would  have  taken  a  vested  prior  right  to  choose 
the  route  of  their  canal,  along  the  left  bank  of  the  PotorYiac  ;  a  vest¬ 
ed  right ,  independent  of  any  act  of  location,  survey,  contract,  or  writ 


30 


of  ad  quod  damnum  :  and  one  which  neither  of  the  sovereign  parties 
to  our  compact  could  have  disturbed  by  a  grant  to  another  corpora-  ' 
tion,  until  after  the  lapse  of  that  time,  on  which  the  charter  itself 
had  predicated  its  continuance  :  and,  in  that  state  of  things,  had  any 
subsequently  formed  company  attempted  to  forestall  our  right,  by  pre¬ 
occupying  the  ground,  no  court  of  chancery  would  have  hesitated  to 
injoin  them  from  such  interference.  Now,  would  it  have  varied  the 
existence  of  the  prior  right  granted  by  this  charter,  even  had  it  been 
the  fact,  that  our  Company  was  not  in  being,  to  take  the  right, 
when  granted,  nor  until  after  the  creation  of  the  Rail  Road  Company, 
and  the  acquisition  of  their  rights  ?  This  is  precisely  the  question 
between  us. 

The  complainants  say,  that  we  could  acquire  no  rights  under  our 
charter,  till  we,  ourselves,  had  a  legal  existence  :  that  we  had  no 
legal  existence  till  the  election  of  President  and  Directors,  in  June, 
1828  :  that  our  rights  are  to  date  from  that  time,  which  was  subse¬ 
quent  to  their  charter,  and  the  acquisition  of  their  rights,  by  purchase  : 
and,  consequently,  that  our  right  is  not  prior  to  theirs,  but  subsequent 
to  it.  On  the  other  hand,  we  say  that  our  rights  are  co-eval  with 
the  .completion  of  our  charter,  to  wit,  1825,  when  the  act  took  effect, 
by  the  assent  of  all,  on  whose  assent  its  operation  was  predicated  : 
that  though  the  Chesapeake  and  Ohio  Canal  Company  had  no  legal 
existence  at  that  time,  and,  consequently,  no  capacity  to  take,  yet, 
the  rights  created  for  the  intended  corporation,  even  at  that  time, 
passed  from  the  grantors,  and  were  in  abeyance  while  their  commis¬ 
sioners,  (i.  e.  the  commissioners  appointed  by  these  sovereigns  them¬ 
selves ,)  were  taking  the  step  necessary  to  form  this  Company  :  that 
though  these  rights  were  in  abeyance,  during  that  period,  they  were 
in  existence ,  and  beyond  the  power  of  recall :  that,  as  soon  as  we  came 
into  existence,  these  rights  attached,  and  had  relation  \  back  to  the 
time  of  the  grant,  displacing  all  intervening  and  interfering  rights, 
and,  consequently,  displacing  all  the  pretended  intermediate  rights  of 
the  complainants. 

That  the  charter  created  the  prior  right  in  question,  if  there  had 
then  been  a  body  in  existence,  capable  of  taking  that  right,  has  been 
already  shown. 

But  it  is  alleged— 

1.  That  no  grant  can  nave  any  effect,  until  there  is  a  grantee  in 
being,  and  capable  of  taking  the  grant. 

This  is  precisely  the  question  which  has  been  so  often  before  the 
Supreme  Court,  and  which  has  been  so  uniformly  decided  in  opposi¬ 
tion  to  the  other  side.  A  grant  in  favor  of  a  non-existing  person  is 
of  every  day’s  occurrence  :  a  grant,  for  example,  to  the  unborn  son, 
of  A. ;  a  grant  to  A.  for  life,  remainder  to  the  heirs  of  B.,  lie  being 
still  alive,  and  his  heirs,  consequently,  unascertained,  or  even  unborn. 
In/act,  in  all  the  cases  of  contingent  remainders,  to  persons  not  in  esse , 
the  case  occurs  of  an  estate  created,  where  there  is  no  one  to  take  it. 
Now,  according  to  the  doctrine  on  the  opposite  side,  all  grants  of 
this  kind  would  be  void.  But  this,  we  know,  is  not  the  case.  The 


31 


grant  is  a  valid  grant :  the  estate  is  a  subsisting  estate,  and  vests, 
as  soon  as  a  person  comes  into  being  who  meets  the  description  in 
the  grant.  Where  the  estate  rests,  in  the  mean  time,  has  been  dis¬ 
puted  among  the  writers.  Fearne  says  it  remains  in  the  grantor, 
or  his  heirs.  Preston,  on  the  contrary,  holds  that  it  passes  out  of  the 
grantor,  and  remains  in  abeyance.  [2  Preston  on  Abstracts,  100, 
3  W.  253.]  But  both  agree  that  it  is  an  estate,  which,  having  been 
once  created,  has  passed  beyond  the  power  of  the  grantor,  and  beyond 
his  resumption  or  modification  ;  and  that  there  is  no  revertor  in  favor 
of  him,  or  his  heirs,  until  a  sufficient  time  shall  have  been  allowed,  to 
see  whether  the  contingent  remainder  man  will  come  into  being. 

I  do  not  understand  this  proposition  to  be  controverted,  as  it  applies 
to  estates  created  in  favor  of  natural  persons,  who  are  not  yet  in 
being  ;  but  it  is  supposed  that  a  different  principle  applies,  where  the 
grant  is  made  in  favor  of  a  corporation,  which  has  not  yet  come  into 
being.  But  the  distinction  is  merely  ideal,  and  has  been  several 
times  refuted  by  the  decisions  of  the  Supreme  Court  of  the  United 
States. 

The  case  of  the  town  of  Pawlet  was  the  case  of  a  grant,  before  the 
revolution,  to  a  non-existing  church  in  New  Hampshire.  No  church 
came  into  existence  before  the  revolution,  and  it  was  insisted  that  the 
grant  could  not  take  effect,  for  the  want  of  a  grantee^  that  the  title 
remained  in  the  grantors  ;  and  that,  by  the  revolution,  the  State  took 
the  place  of  the  grantors. 

But  what  say  the  Court  ? 

“  A  grant  by  the  Crown  for  a  non- existing  parish  church ,  may 
take  effect  bij  the  common  law ,  as  a  donation,  ad  pins  usus." 

After  such  donation,  it  would  not  be  competent  for  the  Crown  to 
resume  it  at  its  own  will,  or  alien  the  property,  without  the  same 
consent  which  is  necessary  to  the  alienation  of  other  church  pro¬ 
perty. “  Under  such  circumstances,  until  a  church  should  be 
legally  erected,  and  a  parson  regularly  inducted,  the  fee  of  the  lands 
granted  would  remain  in  abeyance,  like  the  hereditas  jacens  of  the 
Roman  law,  in  expectation  of  an  heir.”  [The  Town  of  Pawlet  vs. 
Clarke,  et  al.  9  Cranch,  292.] 

Again,  in  the  case  of  Dartmouth  College  vs.  Woodward,  4  Whea¬ 
ton,  518.  “  When  a  charter  is  granted,  and  it  brings  the  corpora- 

“  tion  into  existence,  without  any  act  of  the  natural  persons  who 
u  compose  it,  and  gives  such  corporation  any  privileges,  franchises, 

or  property,  the  law  deerps  the  corporation  to  be  first  brought  into 
(i  existence,  and  then  clothes  it  with  the  granted  liberties  and  pro- 
“  perty. 

“  When,  on  the  other  hand,  the  corporation  is  to  be  brought  into 
“  existence  by  some  future  acts  of  the  corporators,  the  franchises  re- 
“  main  in  abeyance,  until  such  acts  are  done,  and  when  the  corpora- 
“  tion  is  brought  into  life,  the  franchises  instantaneously  attach  to  it. 

“  There  is  no  difference  between  the  case  of  a  grant  of  land,  or  of 
€i  franchises  to  an  existing  corporation,  and  a  grant  to  a  corporation, 
“  brought  into  life  for  the  very  purpose  of  receiving  the  grant.  As 


32 


u  soon  as  it  is  in  esse,  ami  the  franchises  ami  property  become  vested 
“  and  executed  in  it,  it  is  as  much  an  executed  contract,  as  if  its 
“  prior  existence  had  been  established  for  a  century.” 

Again,  in  the  case  of  the  Dartmouth  College  and  Woodward,  (p.  203.) 

Unless  there  be  a  power  reserved  in  such  charter,  it  cannot  be 
altered,  (p.  202.) 

That  in  such  a  case  every  interference  with  the  rights  granted  by 
the  charter  is  a  violation  of  the  Constitution  of  the  United  States,  is 
apparent,  not  only  from  these  cases,  but  that  also  of  Green  vs. 
Biddle,  in  8th  Wheaton. 

The  effect  of  these  authorities  is,  that,  if  our  charter,  by  its  terms, 
created  a  prior  right,  (which  I  have  shown  it  did,)  this  prior  right 
passed  from  the  grantors,  beyond  recall,  by  the  charter  itself,  at  the 
date  of  the  grant:  that  though  it  was  in  abeyance  until  we  came  into 
existence,  still,  in  that  condition,  it  was  an  estate  beyond  recall,  like 
the  hereditas  jacens  of  the  Roman  law,  in  expectation  of  an  heir;  and 
that,  as  soon  as  we  came  into  existence,  this  right  attached  to  us,  and 
became  vested  in  us,  with  relation  back  to  the  date  of  the  grant,  dis¬ 
placing  all  intermediate  and  interfering  rights  derived  from  the  same 
grantors,  and,  a  fortiori,  displacing  all  such  rights,  when  derived  from 
one,  only,  of  the  grantors.  That  it  attached,  with  relation  back  to 
the  date  of  the  grant,  is  not  only  manifest  from  the  authorities,  but 
stands  upon  the  clearest  principles  of  reason :  for  when  it  passed  from 
the  grantor,  at  the  date  of  the  grant,  for  whose  benefit  did  it  pass  ? 
And  while  it  was  in  abeyance,  for  whose  benefit  was  it  in  abeyance  ? 
Even  on  the  principle  of  Fearne,  that  it  did  not  pass  out  of  the 
grantor,  but  remained  in  him  till  the  grantee  came  in  existence,  still 
he  admits  that  the  rights,  thus  created,  are  unalterable,  and  vest,  with 
relation  back  to  the  date,  as  soon  as  the  grantee  does  come  into  ex¬ 
istence. 

Having  thus  considered  the  question,  on  the  ground  of  strict  law, 
let  us  now  take  it  up  on  the  ground  of  reason  and  right ;  of  equity 
and  good  conscience. 

Here  is  a  case  of  several  sovereigns  uniting,  in  publishing  to  the 
world  a  charter,  to  incorporate  the  Chesapeake  and  Ohio  Canal  Com¬ 
pany,  wjth  certain  rights  defined  in  that  charter.  They  proclaim, 
by  this  charter,  that  the  Company,  when  formed,  shall  have  certain 
specified  rights.  These  sovereigns,  themselves,  appoint  commission¬ 
ers  for  the  purpose  of  collecting  subscriptions,  in  order,  that  the 
Company  may  be  formed.  They  say  to  the  public,  (t  subscribe,  and 
“  as  soon  as  one  fourth  of  the  capital  is  taken,  you  shall  be  incorpo- 
“  rated,  and  become  possessed  of  these  rights.”  In  the  mean  time, 
these  sovereigns,  themselves,  go  on  to  survey  the  route,  and  estimate 
the  cost,  for  the  purpose  of  demonstrating  to  the  public  the  practica¬ 
bility  of  the  enterprize  which  they  propose.  The  reports  of  these 
surveyors  and  engineers  are  published  to  the  world.  They,  them¬ 
selves,  propose  the  left  bank  as  the  best  route,  and  the  public  are  in¬ 
vited  to  form  their  calculations  on  that  bank. 

In  full  reliance  on  the  faith  of  this  charter,  the  public  subscribe:  these 
sovereigns  themselves  subscribe.  The  subscriptions  are  filled  up,  to 


33 


the  amount  required  to  make  them  a  corporation  ;  and  when,  by  their 
charter,  they  have  become  incorporated,  and  are  looking  to  the  exe¬ 
cution  of  their  charter,  in  good  faith,  they  find  that  a  rival,  started  by 
one  of  these  sovereigns,  without  any  consultation  with  the  rest,  has 
gone  and  pre-occupied  the  ground,  and  that  they  are  to  be  driven  from 
all  the  advantages  of  that  choice  of  route,  on  the  faith  of  which  they  had 
made  and  paid  their  subscriptions,  and  this  Company  had  been  incor¬ 
porated.  Does  not  reason,  and  justice,  and  conscience,  revolt  at  a 
proceeding  like  this  ?  And, if  permitted  to  succeed,  is  it  not  a  violation 
of  the  faith  of  our  charter  ? — the  subversion  of  the  fundamental  condi¬ 
tions  on  which  our  contract  rests  ?  And,  if  so,  do  not  reason  and  com¬ 
mon  sense,  and  common  honesty,  confirm  the  decision  which  we 
have  shown  that  the  law  has  pronounced  upon  our  right  ? 

Objection. — Is  this  right  to  remain  in  abeyance,  in  perpetuam,  in 
order  to  see  whether  the  Company  can  be  formed,  and  these  sovereigns 
to  be  forever  debarred  from  starting  any  useful  project  on  the  same 
ground  ? 

Answer — This  was  a  question  for  these  sovereigns,  themselves, 
when  they  gave  this  charter  ;  not  for  individuals,  nor  for  this  Court. 
They  have  given  a  charter,  fixing  no  limit,  in  point  of  time,  within 
which  the  Company  shall  be  formed.  If  reason  fixes  a  limit,  what 
is  that  limit  ?  It  is  a  reasonable  time .  But  who  is  to  judge  of  the  rea¬ 
sonableness  of  the  time  ?  The  founders  of  the  corporation.  Have 
they  pronounced  the  time  unreasonable,  and  the  charter,  therefore,  as 
a  void  charter  F  On  the  contrary,  through  the  whole  of  the  three  years, 
charged  as  unreasonable, they  have  been  continually  legislating.amend- 
ing  the  charter,  up  to  the  time  of  the  actual  incorporation,  treating 
it,  therefore,  as  a  continuing  charter,  and  thereby  admitting  that  there 
has  been  no  delay  which  affects  its  existence.  But  if  there  has  been 
delay,  whose  delay  was  it  ?  Not  the  delay  of  the  corporation,  for  they 
had  no  existence  ;  but  the  delay  of  these  sovereigns  themselves.  For 
the  Commissioners,  who  wrere  collecting  these  subscriptions,  w  ere  their 
officers,  not  ours  ;  were  acting  under  the  orders  of  these  sovereigns, 
as  expressed  in  their  charter  ;  not  under  our  orders.  These  sove¬ 
reigns,  themselves,  then,  by  their  agents,  collected  these  subscriptions, 
up  to  the  time  of  the  incorporation,  and  afterw  ards  subscribed  them¬ 
selves  ;  (for  both  Maryland  and  the  United  States  subscribed  after¬ 
wards  ;)  and  you  are  yet  called  on  to  decide  that  the  time.thus  con¬ 
sumed  was  unreasonable,  as  against  these  sovereigns,  w  ho  were  them¬ 
selves  the  consumers.  As  to  the  time  consumed,  after  this  Company 
became  a  corporation,  in  waiting  to  call  a  meeting  of  the  Stockhold¬ 
ers,  to  choose  a  President  and  Directors,  this  is  accounted  for  by  our 
answer.  Who  is  to  judge  of  the  reasonableness  of  this  account,  with 
reference  to  the  continuance  of  the  charter  ?  The  founders  on  a  quo 
warranto  for  non  user :  for  we  were  then  a  corporation,  and  there 
could  be  no  forfeiture,  hut  by  a  judgment  of  Court.  But  the  found¬ 
ers  of  the  corporation,  instead  of  complaining  of  that  delay,  have  ap¬ 
proved  it ;  and  one  of  them,  the  State  of  Maryland,  was  a  subscriber, 
after  that  alleged  delay,  which  is  supposed  to  have  forfeited  the 
charter. 


3 


34 


Our  argument  is,  that,  prior  to  our  actual  incorporation,  by  the 
subscription  of  one-fourth  of  our  stock,  this  prior  right  of  choice  ex¬ 
isted  in  our  favor,  and  could  not  be  disturbed  by  a  rival  grant ;  more 
especially,  by  a  rival  grant  from  one  of  the  sovereigns  who  had  united 
in  giving  ours. 

II.  But  if  it  were  necessary  that  we  should  have  come  into  corpo¬ 
rate  existence,  and  that  this  hereditas  jacens  should  actually  have 
vested,  in  order  to  give  it  the  effect  of  keeping  off  intruders  ;  it  did 
vest ,  by  our  incorporation,  in  October,  1827,  which  was  prior  to 
those  acts  of  contract  and  warrants  of  condemnation,  on  which  the 
complainants  found  their  right.  Now,  whether  we  had  a  corporate 
existence,  or  not,  is  a  question  of  fact,  put  in  issue  by  the  bill  and 
answer ;  and,  being  a  question  of  fact,  the  answer  is  decisive,  accord¬ 
ing  to  the  case  of  Delaplane  vs.  Parker.  They  say,  that  they  wish 
proof  to  show  that  these  subscriptions  were  conditional;  but  the  ac¬ 
count,  given  by  the  answer,  is  responsive  to  this  allegation,  and  com¬ 
pletely  overthrows  it. 

Objection . — We  were  not  incorporated  till  a  meeting  of  the 'Stock¬ 
holders  was  called,  and  that  meeting  had  ascertained  that  one-fourth 
of  the  capital  had  been  subscribed. 

Answer . — I  do  not  so  understand  the  charter  ;  the  third  section  pro¬ 
vides,  that  as  soon  as  one-fourth  of  our  stock  shall  have  been  subscrib¬ 
ed,  we  shall  be  incorporated  into  a  company  by  the  name  of  “The  Che¬ 
sapeake  and  Ohio  Canal  Company that  we  may  sue  and  be  sued ;  and, 
as  such  corporation  shall  have  perpetual  succession,  and  a  common 
seal ;  and  that  the  estate ,  rights ,  and  interests  of  the  Company  shall 
be  deemed  and  taken  to  be  real  estate  ;  and,  thereupon ,  i.  e.  after  we 
have  become  incorporated ,  it  shall  be  the  duty  of  the  Commissioners 
to  call  a  genera]  meeting  of  the  stockholders,  to  elect  a  President  and 
Directors.  So  that  our  actual  incorporation,  instead  of  being  made 
to  depend  upon  this  call,  is  to  precede  it;  and  the  call  is  to  be  the  conse¬ 
quence  of  the  previous  incorporation .  This  call  is  to  be  made  for  the 
purpose  of  electing  a  President  and  Directors ;  which  is,  itself  a  cor¬ 
porate  act ,  and  presupposes  a  corporation. 

Objection . — Who  is  to  ascertain  when  one-fourth  of  the  stock  is  sub¬ 
scribed  ? 

Answer — The  commissioners  appointed  by  the  Executives  of  the 
several  States — for  they  are  to  make  the  call,  and,  therefore,  must  have 
first  ascertained  that  one-fourth  of  the  stock  had  been  subscribed  :  and 
the  call  of  the  stockholders,  required  by  the  third  section,  is  clearly 
for  the  purpose  of  electing  a  President  and  Directors,  and  not  for  the 
purpose  of  ascertaining  the  fact  that  one-fourth  of  the  stock  has  been 
subscribed.  The  third  section  begins  as  follows  :  “  That,  whenever 
one-fourth,  or  a  greater  part  of  the  said  stock,  shall  have  been  sub¬ 
scribed,  in  the  manner  aforesaid,  then  the  subscribers,  their  heirs,  and 
assigns,  shall  be,  and  arc  hereby  declared  to  be,  incorporated  into  a 
company,  by  the  name  of  the  Chesapeake  and  Ohio  Canal  Company,” 
See.  The  words  “in  the  manner  aforesaid,”  are  supposed  to  mean 
“ shall  be  ascertained  in  the  manner  aforesaid;”  but  the  clause  is 


/ 


35 


shall  have  been  subscribed  in  the  manner  aforesaid .”  And  the  re¬ 
ference  is  to  the  first  section  of  the  law  which  describes  the  manner 
of  subscribing.  The  first  section  goes  on  to  recite  that  “  the  said 
commissioners  shall  cause  books  to  be  opened  at  such  times  and  places 
as  they  shall  think  fit,  in  their  respective  States,  and  in  the  District 
of  Columbia,  under  the  management  of  such  persons  as  they  shall  ap¬ 
point  for  receiving  subscriptions  to  the  capital  stock  of  the  company 
hereinafter  incorporated  ;  which  subscriptions  may  tye  made  either  in 
person  or  by  power  of  attorney :  and  notice  shall  be  given  in  such 
manner  as  may  be  deemed  advisable,  by  one  or  more  of  the  said  com¬ 
missioners,  of  the  time  and  places  of  opening  the  books.”  The  words 
“  shall  be  subscribed  in  the  manner  aforesaid,”  mean — 1.  Shall  have 
been  subscribed  in  books  opened  by  these  commissioners  in  Maryland, 
Virginia,  and  the  District  of  Columbia.  2.  Shall  have  been  sub¬ 
scribed  in  person,  or  by  power  of  attorney.  3.  After  due  notice  of 
the  time  and  places  of  opening  the  books. 

Objection . — The  second  section  makes  it  perfectly  clear  that  tlie  act 
of  incorporation  takes  effect  only  upon  a  call  of  the  meeting  of  the 
stockholders. 

Answer. — That  section  proves  no  such  thing.  It  has  not  a  single 
expression  which  puts  the  date  of  the  incorporation  upon  the  call  thus 
required  ;  that  is  not  at  all  the  office  or  aim  of  that  section.  The  call 
required  by  the  second  section,  i§  a  call  to  be  made  after  the  commis¬ 
sioners  shall  have  closed  their  books  ;  a  time  which  has  not  yet  arrived, 
because  the  books  are  still  open.  “  And  the  said  commissioners,” 
says  the  second  section,  “shall  cause  the  books  to  be  kept  open  at 
least  forty  days  :  and,  within  twenty  days  after  the  expiration  there¬ 
of,  shall  call  a  general  meeting  of  the  subscribers  at  the  city  of  Wash¬ 
ington  ;  of  which  meeting,  notice  shall  be  given,”  &c.:  “  and  the  com¬ 
missioners,  at  the  time  and  place  aforesaid,  shall  lay  before  such  of 
the  subscribers  as  shall  meet,  according  to  the  said  notice,  the  book 
containing  the  state  of  the  said  subscriptions  ;  and  if  one-fourth  of 
the  capital  sum  of  six  millions  of  dollars  should  appear  not  to  have 
been  subscribed,  then  the  said  commissioners,  or  a  majority  of  them, 
at  the  said  meeting,  are  empowered  to  take  and  receive  subscriptions 
to  make  up  such  deficiency,  and  may  continue  to  take  and  receive 
such  subscriptions  for  the  term  of  twelve  months  thereafter,”  &c. 

13  y  the  first  line  of  the  section,  the  commissioners  are  required  to 
keep  open  their  books  at  least  forty  days  ;  this  is  the  minimum  ;  they 
may  keep  them  open  as  much  longer  as  they  please.  The  section  then 
proceeds  :  “  and  within  twenty  days  after  the  expiration  thereof.”  Af¬ 
ter  the  expiration  of  what  ?  After  the  expiration  of  the  forty  days? 
Surely  not,  for  this  would  be  to  convert  the  minimum  into  a  maxi¬ 
mum,  and  to  prohibit  them  from  keeping  open  their  books  longer  than 
the  forty  days.  If  it  docs  not  mean  within  twenty  days  after  the 
forty  days,  what  else  can  it  mean,  but  “  after  the  expiration  of  the 
time  during  which  they  shall  choose  to  keep  the  books  open  ?”  The 
section,  then,  contemplates  the  fact  of  the  commissioners  having  closed 
their  books,  and  having  closed  them  under  two  alternative  situations. 


36 


1.  Under  a  deficiency  of  subscriptions,  and  in  despair  of  complet¬ 
ing  them. 

2.  Under  a  redundance  of  subscriptions  which  requires  to  be  pruned. 

If  they  shall  have  closed  their  books  under  either  of  these  aspects, 

the  second  section  proceeds  to  direct  what  shall  be  done.  They  shall 
call  a  meeting  of  the  stockholders,  and  lay  the  books  before  them  ; 
and  if,  on  this  inspection,  the  first  appears  to  be  the  case,  the  section 
says  the  project  «hall  not  yet  be  abandoned,  but  the  books  shall  be 
kept  open  twelve  months  longer,  to  see  whether  the  requisite  sum 
cannot  yet  be  obtained.  If,  on  the  other  hand,  the  books  shall  pre¬ 
sent  the  other  aspect  of  a  redundant  subscription,  the  section  proceeds 
to  describe  how  it  shall  be  pared  down. 

The  last  proviso — “  that  unless  one  fourth  of  the  capital  shall  be 
subscribed,  as  aforesaid,”  i.  e.  in  case  tjie  books  shall  have  been 
closed  on  a  deficiency  of  subscription,  and  one-fourth  cannot  be  ob¬ 
tained  within  twelve  months  after  the  meeting  of  the  stock-holders, 
consequent  upon  such  close,  then  “all  subscriptions  made  in  conse¬ 
quence  of  this  act  shall  be  void  “and  that,  in  case  one-fourth 
and  less  than  the  whole  capital  shall  be  subscribed  as  aforesaid,  (i.  e. 
under  the  circumstances  contemplated  by  the  section,  to  wit :  of  the 
hooks  having  been,  in  the  first  instance,  closed  on  a  deficiency,)  then, 
the  said  commissioners,  or  a  majority  of  them,  are  empowered  to  go 
on  and  receive  subscriptions.”  So  that  the  whole  section  looks  to  a 
case  which  has  not  yet  occurred — a  close  of  the  subscription  books, 
and  a  close  of  them  either  under  circumstances  of  deficiency  or  of  re¬ 
dundance. 

The  whole  section  is  merely  directory ,  as  to  what  the  commis¬ 
sioners  shall  do,  when  they  shall  determine  to  close  their  books  under 
either  of  the  circumstances  aforesaid  :  not  having  one  single  provision 
which  looks  to  the  designation  of  the  point  of  time  when  the  subscribers 
shall  be  considered  as  incorporated .  To  designate  this  time ,  is  the  pecu¬ 
liar  and  single  office  of  the  third  section.  The  3d  section  begins,  “that 
whenever  one  fourth,  or  a  greater  part  of  the  said  stock  shall  have  been 
subscribed  in  the  manner  aforesaid .”  Will  it  be  said,  subscribed  in  the 
manner  set  forth  in  the  2nd  section  :  i.  e.  subscribed  after  the  books 
shall  have  been  closed  by  the  commissioners,  either  under  a  deficiency 
or  a  redundancy  ? — subscribed  after  a  call  of  the  stockholders  shall 
be  made  upon  a  close  of  the  books,  in  a  state  of  hopeless  deficiency, 
or  overflowing  exuberance  ?  Could  it  have  been  the  intention  of  the 
Legislature,  that  the  company  should  not  become  incorporated,  unless 
the  one  fourth  exactly ,  no  more  nor  less,  should  have  been  gained  under 
sucb  peculiar  and  critical  circumstances  ?  Could  they  have  been  guilty 
of  such  folly  and  madness,  as  to  put  the  success  of  a  project  so  dear  to 
them,  on  such  an  unnecessarily  perilous  cast  of  the  die  ?  The  construc¬ 
tion  would  be  preposterous.  No,  they  were  done  with  the  subject  of 
the  second  section — that  critical  case  had  been  disposed  of — provided 
for  :  and  now,  in  the  third  section,  they  resume  the  general  legisla¬ 
tion  for  the  furtherance  of  their  object :  and  the  words,  shall  be  sub¬ 
scribed  in  the  manner  aforesaid,  allude  simply  to  the  manner  in  which 
subscriptions  are  directed  to  be  taken  by  the  first  section. 


37 


There  is,  then,  I  apprehend,  no  force  in  the  objection  that  the  cor¬ 
poration  is  to  take  date  from  the  call  of  the  stockholders,  required 
by  the  second  section,  since  the  third  section  makes  this  call  a  conse¬ 
quence  of  the  previous  incorporation  :  and  this  call  is  merely  for  the 
purpose  of  electing  a  President  and  Directors. 

Objection. — It  must  take  date  from  the  call  of  the  stockholders,  be¬ 
cause  such  a  published  call  was  necessary,  to  give  the  world  notice 
of  their  corporate  existence,  and  that  their  corporate  rights  had 
arisen,  so  as  to  put  all  other  parties  on  their  guard. 

Answer. — l.  This  may,  in  the  view  of  our  adversaries,  be  a  good 
reason  why  the  date  of  this  corporation  should  have  been  predicated 
on  this  public  call.  But  the  Legislature  have  thought  differently — 
they  have  not  put  it  on  that  call,  but  on  the  subscription  of  one-fourth 
of  the  stock.  They  alone  have  the  power  to  say  when  the  corpora¬ 
tion  shall  arise,  and  so  far  from  making  that  call  the  date  of  the  cor¬ 
poration,  they  have  made  it  the  mere  consequence  of  the  previous  in¬ 
corporation.  The  call  is  made,  because  the  corporation  has  taken 
effect,  and  it  is  made  for  the  mere  purpose  of  electing  executive  offi¬ 
cers — a  purpose  which,  in  itself,  implies  the  previous  corporation ; 
because  such  election  is  the  act  only  of  a  body  already  incorporated. 

2.  Who  were  to  be  put  on  their  guard,  as  to  the  fact  that  our  cor¬ 
poration  had  arisen  ?  According  to  our  view  of  the  subject,  the  only 
persons  interested  in  knowing  that  fact,  were  the  corporators  them¬ 
selves.  The  riparian  proprietors,  along  the  Potomac,  required  no 
such  notice/  The  published  charter  had  informed  them  of  the  con¬ 
templated  canal,  and  that  this  canal  would  certainly  pass  through 
the  lands  of  some  of  them.  They  knew  that,  by  the  general  laws 
of  the  land,  their  property  was  liable  to  be  taken  at  a  fair  valua¬ 
tion,  whenever  it  was  required  for  public  use,  and  that  it  could  not 
be  taken  without  notice,  nor  without  a  fair  valuation.  What  advan¬ 
tage  could  have  been  derived  to  them,  from  notice  of  the  specific 
time  at  which  the  Company  had  become  incorporated  ?  Could  they, 
with  that  knowledge,  have  done  any  thing  to  ward  off  the  passage  of 
this  canal  through  their  land,  even  if  it  had  been  desirable  ?  If  they 
could  not,  as  they  manifestly  could  not,  of  what  use  would  this 
knowledge  have  been  to  them? 

The  real,  though  disguised  meaning  of  this  argument  about  public 
notice  to  put  people  on  their  guard,  is  neither  more  nor  less  than 
this — that  the  Rail  Road  Company,  having  the  notice,  might  the  soon¬ 
er  have  been  put  on  the  qui  vive ,  and  have  run  down  upon  the  Poto¬ 
mac,  to  secure  these'same  difficult  passes,  which  they  take  care  to  say 
in  every  bill,  they  did  not  secure  merely  for  the  purpose  of  obstructing 
the  Chesapeake  and  Ohio  Canal :  which  can  mean  nothing  more  nor 
less  than  this,  that  although  this  was  one  of  the  purposes,  it  was  not  the 
only  one ;  and  whether  this  be  a  purpose  so  moral,  or  so  legal,  as  to 
have  required  notice  to  be  able  to  accomplish  it,  this  court  and  the  seve¬ 
ral  other  tribunals  before  which  this  question  is  to  come,  are  to  decide. 

But  if,  indeed,  a  published  call  of  the  stockholders  was  necessary 
to  our  incorporation,  and  fixes  the  date  of  our  incorporation,  that 


call  took  place  in  March,  1828 — before  the  inception  of  the  rights  allege 
ed  in  the  bill ,  and  our  rights  were  consequently  vested  by  our  incor¬ 
poration  before  the  commencement  of  those  rights  on  which  the  bill 
relies.  This  fact  is  stated  by  the  answer,  and  is  conclusive,  because 
responsive  to  that  allegation  of  the  bill,  that  we  were  not  an  organ¬ 
ized  corporation  before  their  measures  to  acquire  these  titles  had  been 
taken.  The  answer  in  averring  every  fact  which  was  essential  to  our 
incorporation,  is  responsive  to  that  part  of  the  Bill  which  denies  this 
character,  and  is  conclusive  on  this  head. 

Objection*— The  charter  was  not  a  charter  until  accepted  by  the 
Stockholders,  and  it  required  a  meeting  of  the  Stockholders  to  say 
whether  they  would  accept  it. 

Answer. — This  is  not  the  case  :  because  the  mere  subscription  was 
an  acceptance  of  it  by  every  one  who  subscribed,  and  required  no 
farther  expression  of  acceptance. 

Objection. — We  took  no  powers  under  the  charter  till  we  were  organ¬ 
ized  by  the  election  of  the  President  and  Directors — none,  at  least, 
relative  to  the  acquisition  of  land  for  the  passage  of  our  canal,  and 
the  4th  and  1 5th  sections  prove  it. 

Answer. — All  our  franchises  attached  by  our  incorporation.  The 
President  and  Directors  were  merely  the  executive  officers,  to  carry 
the  pre-existing  rights  into  effect.  All  our  rights  arose  when  our 
charter  was  completed.  Before  our  incorporation  these  rights  were 
in  abeyance ;  but  as  soon  as  that  event  took  place,  they  immediate¬ 
ly  attached,  and  became  vested  rights;  and  the  President  and  Direc¬ 
tors  appointed  by  us,  were  merely  the  officers  designated  by  the  law  to 
carry  our  pre-existing  rights  into  effect.  If,  therefore,  our  rights 
did  not  attach  till  the  appointment  of  the  President  and  Directors, 
they  arose  upon  the  charter,  and  were  in  abeyance  till  we  should  be¬ 
come  incorporated,  and  these  officers  be  appointed  ;  and,  then,  they 
attached  with  relation  back  to  the  date  of  the  charter. 

This  closes  my  view  of  the  question  of  prior  right. 

If  I  have  succeeded  in  maintaining  the  existence  of  this  right,  under 
the  charter,  it  must  be  manifest  that  it  is  perfectly  immaterial  wheth¬ 
er  we  had,  or  had  not,  designated  the  precise  route  of  our  canal,  be¬ 
fore  the  Rail  Road  Company  came  into  existence.  My  position  is, 
that  we  had  the  right  to  elect  our  ground  on  either  bank  of  the  Poto¬ 
mac  :  and  that,  to  shut  up  either  bank  against  us,  as  this  injunction 
does,  is  a  violation  of  oui  chartered  rights.  When  the  Rail  Road 
Company  came  into  existence,  they  saw  the  charter  of  the  Chesapeake 
and  Ohio  Canal  Company,  and  could  not  but  have  known  that  this  broad 
right  of  election  was  open  to  them.  It  is  no  apology,  on  their  part,  to 
say,  that  they  did  not  know  what  route  we  would  choose.  Sir,  if  this 
were  necessary  for  them  to  know,  they  did  know  it.  They  knew,  at 
least,  that  we  would  take  the  left  bank  of  the  river.  The  surveys 
and  reports  of  the  Commissioners,  which  are  before  you,  and  which 
were  made  preparatory  to  our  charter,  and  some  of  them  accompany¬ 
ing  it  in  point  of  time,  bad  proclaimed  to  all  the  country  that  the  left 
bank  of  the  river  presented  the  proper  route  for  the  canal.  These 


89 


surveys  and  reports  were  the  acts  of  the  sovereigns,  themselves,  who 
gave  us  our  charter  :  they  were  presented  to  the  world,  in  explanation 
of  our  charter  ;  were  published  to  prove  its  practicability,  and  thus 
to  assure  the  public  confidence  in  the  enterprize,  and  to  invite  subscrip¬ 
tions.  They  are  part  of  the  representations  which  led  to  the  compact 
between  the  sovereigns,  and  the  subscribers  to  the  Chesapeake  and  Ohio 
Canal  Company.  And  yet,  the  counsel  on  the  other  side  say,  that  these 
surveys  and  reports  “  were  not  made  for  us — they  were  made  for 
“the  public;  for  them ,  too :  it  was  mere  Imp-hazard  and  luck,  on  our 
“  part,  that  we  have  the  benefit  of  them. 99  Sir,  let  these  surveys  and 
reports  be  inspected  :  it  will  be  found  that  they  have  reference,  only,  to 
a  continuous  canal ;  not  to  a  rail-road.  They  connect  themselves  imme¬ 
diately  and  palpably  with  our  charter,  and  constitute  a  part  of  the 
£  inducements  to  our  contract.  These  surveys  and  reports  were  notice 
enough  to  the  Rail-road  Company,  that,  in  seizing  on  the  left  bank  of 
the  river,  they  were  seizing  on  that  which  had  been  previously 
granted  to  another  company.  But  this  seizure  itself,  and  the  sleep¬ 
less  zeal  with  which  it  has  been  urged,  contains,  in  itself,  the  evi¬ 
dence.  that  our  route  was  understood,  and  that  the  design  was  to 
forestall  us.  What  do  they  themselves,  in  their  various  bills, 
describe  and  admit  to  have  been  their  object  ?  “  They  deputed  en¬ 

gineers  to  pass  along  the  said  route ,  and  wherever  the  character  of 
the  ground  was  such  as  to  leave  but  little  choice  as  to  the  location  of 
i  said  road ,  or  to  present  but  one  passage,  to  make,  at  once,  an 
actual  location  of  said  road,  over  the  same,  designating  it  by  well 
defined  boundaries,  so  that  said  location  might  serve  as  regulating 
points  for  the  intermediate  sections,  and  might  secure  the  passage  of 
the  road  ;  and,  also,  agents  and  attornies  to  procure  for  you  orators, 
a  title  to  all  the  lands  included  in  said  locations,”  &c.  And  when 
you  come  to  look  at  the  contracts  filed  with  the  bill,  you  find  them 
directed  to  all  these  difficult  passes,  where  the  ground  was  such  as  to 
leave  but  little  choice,  or  to  present  but  one  passage  ;  and  these  con¬ 
tracts  call  for  the  low  water-mark,  as  the  boundary.  Now,  against 
whom  were  these  operations  directed  ?  Who  was  there,  against  whom 
^  they  could  possibly  be  directed,  but  the  Chesapeake  and'Ohio  Canal 
Company  ?  Nay,  lest  you  should  doubt  upon  this  subject,  they  go  on 
to  assure  you,  in  all  their  bills,  that  they  did  not  take  these  steps, 
“  merely  to  impede  or  obstruct  the  Chesapeake  and  Ohio  Canal  Com¬ 
pany  and  the  constant  repetition  of  the  same  form  of  expression, 
precisely  in  the  same  words  in  every  bill,  proves  that  it  was  the 
result  of  study  and  premeditation  ;  and  that  it  thus  admits  that  it  was 
partly  their  purpose  to  impede  and  obstruct  the  Chesapeake  and  Ohio 
Canal,  and  partly  to  secure  the  single  passage  for  themselves.  They 
knew,  therefore,  and  well  knew,  that  the  left  bank  of  the  river 
would,  and  must  be  our  choice ;  and  this  choice,  it  is  the  direct  and 
admitted  object  of  these  operations  to  defeat.  This  object  this  in¬ 
junction,  connected  with  their  contracts  and  locations,  completely 
accomplishes  ;  for  it  effectually  drives  us  from  the  left  bank,  into  the 
river,  below  water-mark,  or  across  tin?  river. 


/ 


40 


Now,  if  your  Honor  thinks  that  they  have  a  right  to  do  this,  we 
pray  you  to  say  so,  at  once  ;  that  we  may  reach,  as  soon  as  possible, 
the  Court  of  last  resort,  upon  this  subject.  But  do  not  keep  our 
works  hung  up,  by  this  injunction,  and  cause  us  to  lose  months  and 
years  for  the  proposed  surveys,  which,  as  I  have  demonstrated,  must, 
at  last,  bring  you  back  to  the  very  question  which  is  now  presented — 
the  question  of  prior  right  of  choice  upon  the  charters  of  the  two  com¬ 
panies. 

The  learned  counsel  who  has  opened  this  argument  for  the  com¬ 
plainants,  represents  the  State  of  Maryland  as  having  sent  both  these 
rival  companies  into  the  field,  armed  with  equal  rights,  and  bid  them 
(to  use  his  own  expression,)  “  God  speed,”  in  acquiring,  as  fast  as 
they  could,  by  competition,  the  titles  of  the  riparian  proprietors.  I 
cannot  deem  so  humbly  of  the  wisdom  or  justice  of  the  Legislature  of 
Maryland,  as  to  adopt  the  opinion,  that  any  such  project  was  enter¬ 
tained  :  I  believe  that  its  wisdom  would  have  foiled  so  poor  and  suici¬ 
dal  a  project ;  and  that  its  justice  would  have  shrunk  from  the  medi¬ 
tation  of  such  a  breach  of  the  faith  pledged  by  it  in  the  charter  of  the 
Chesapeake  and  Ohio  Canal  Company. 

The  argument  on  the  other  side  perpetually  confounds  the  acquisi¬ 
tion  of  the  title  of  the  riparian  proprietors,  with  that  right  of  emi¬ 
nent  domain  which  over-rides  those  titles.  To  whom  was  this  emi¬ 
nent  domain  (or  what  is  the  same  thing,  a  right  of  passage  flowing 
from  it,)  first  pledged  ?  This,  and  this  alone,  is  the  question  here  : 
for,  whoever  has  this,  has  a  right  which  cannot  be  ousted,  by  buy¬ 
ing  in  the  titles  of  the  riparian  proprietors.  And  were  it  not  for  the 
respect  due  to  the  injunction  of  this  Court,  I  should  adviser  my  clients 
to  proceed  in  the  execution  of  their  work,  just  as  if  nothing  had  been 
done  by  the  Baltimore  and  Ohio  Rail-road  Company,  being  tho¬ 
roughly  convinced  that  my  clients  are  cloathed,  by  their  charter, 
with  the  prior  and  paramount  right  of  making  their  way,  according 
to  their  own  choice  of  route,  along  the  valley  of  the  Potomac,  without 
regard  to  the  question  of,  who  are  the  individual  proprietors  of  the 
lands  through  which  they  wish  to  pass  ? 

Sir,  I  am  perfectly  satisfied,  that  the  State  of  Maryland  was  so  £ 
far  from  having  intended  to  create  this  disgraceful  and  mutually 
ruinous  collision,  that  they  did  not  even  anticipate  it,  when  they  gave 
their  charter  to  the  Baltimore  and  Ohio  Rail  Road  Company.  The 
structure  of  the  charter,  itself,  satisfies  me  of  this  fact,  and  the  con¬ 
viction  becomes  irresistible,  when  we  compare  the  charter  with  those 
proceedings  in  Baltimore  which  led  to  the  application  for  it,  and  were 
offered  to  the  Legislature  in  support  of  that  application.  (See  Appen- 
dix.F.)  In  these  proceedings,  the  true  termini  of  the  Rail  Road  are  given, 
the  whole  project  insists  on  the  superior  advantages  of  the  Rail  Road 
to  the  canal,  in  this  ;  that  the  Rail  Road  will  reach  its  destination  by 
the  shortest  and  most  direct  route,  while  the  canal  must,  necessarily, 
follow  the  sinuosities  of  the  stream  which  is  to  feed  it.  It  is  needless 
to  dwell  on  this  view  of  the  subject,  as  it  is  so  fully  expanded  in  the 
answer. 


c 


41 


But,  be  your  construction  of  the  charter  of  the  Rail  Road  Compa¬ 
ny  what  it  may,  the  same  question,  the  same  prominent,  sole,  decisive 
question  continually  recurs,  which  of  the  two  Companies  has  the  prior 
choice  of  route  ?  If  we  have  it,  we  pray  you  to  dissolve  the  injunction 
which  interferes  with  the  exercise  of  this  right.  If  the  complainants 
have  it,  we  pray  you,  with  equal  fervor ,  to  perpetuate  the  injunction , 
and  enable  us  to  carry  this  question  of  right,  as  speedily  as  possible , 
to  its  ultimate  decision. 

If  the  complainants  have  this  prior  right,  why  do  they  object  to  the 
perpetuation  of  their  injunction  ?  If  the  right  be  theirs,  it  must  be 
theirs  upon  the  charters.  They  cannot  require  these  surveys.  We 
deprecate  them ,  as  producing  to  us,  a  wanton  and  most  rutnous  delay. 
But  the  complainants  object,  both  to  your  dissolving  the  injunction, 
and  perpetuating  it.  What  possible  motive  can  they  have  for  this 
course  ?  Can  human  charity,  or  even  human  credulity,  imagine  any 
other  bqt  one ;  to  protract  the  litigation  ;  to  obstruct  the  Canal 
Company,  as  long  as  possible,  in  the  execution  of  their  work  ;  to  an¬ 
noy  and  weary  them  into  a  surrender  of  their  rights,  or  an  abandon¬ 
ment  of  the  great  object  committed  to  their  care.  Can  they  hope  that 
the  High  Court  of  Chancery  of  Maryland  will  lend  itself  to  purposes 
such  as  these  ? 

I  submit  the  case,  in  full  reliance  that  the  Court  will  be  rather  dis¬ 
posed  to  hasten  this  dispute  to  its  end,  than  to  yield  to  a  proposition 
which  can  be  productive  of  nothing  but  delay  and  oppression  to  which 
ever  party  has  the  right.  • 

• 


4 


,y> 


l 


\ 


I 


APPENDIX. 


'•#  *  1 

r  A. 

EXTRACT  FROM  AN  ACT  OF  THE  STATE  OF  VIRGINIA, 

Jin  act  incorporating  the  Chesapeake  and  Ohio  Canal  Company — [ PasS‘ 
ed  January  27,  1824.] 

“  Whereas  a  navigable  canal  from  the  tide  water  of  the  river  Poto¬ 
mac,  in  the  District  of  Columbia,  to  the  mouth  of  Savage  Creek,  on 
the  north  branch  of  said  river,  and  extending  thence,  across  the  Alle¬ 
ghany  mountain,  to  some  convenient  point  of  the  navigable  waters  of 
the  river  Ohio,  or  some  one  of  its  tributary  streams,  to  be  fed  through 
its  course,  on  the  east  side  of  the  mountain,  by  the  river  Potomac  and 
the  streams  which  empty  therein,  and  on  the  western  side  of  the  moun¬ 
tain,  and  in  passing  over  the  same,  by  all  such  streams  of  water  as 
may  be  beneficially  drawn  thereto  by  feeders,  dams,  or  any  other 
practicable  mode,  will  be  a  work  of  great  profit  and  advantage  to  the 
people  of  this  State,  and  of  the  neighboring  States,  and  may  ultimate¬ 
ly  tend  to  establish  a  connected  navigation  between  the  eastern  and 
western  waters,  so  as  to  extend  and  multiply  the  means  and  facilities 
of  internal  commerce  and  personal  intercourse  between  the  two  great 
sections  of  the  United  States,  and  to  interweave  more  closely  ail  the 
mutual  interests  and  affections  that  are  calculated  to  consolidate  and 
perpetuate  the  vital  principles  of  Union  :  and  whereas  it  is  represent¬ 
ed  to  this  General  Assembly,  that  the  Potomac  Company  are  willing 
and  desirous  that  a  charter  shall  be  granted  to  a  new  company,  upon 
the  terms  and  conditions  hereinafter  expressed  ;  and  that  the  charter 
of  the  present  company  shall  cease  and  determine: 

“Beit  therefore  enacted  by  the  General  Assembly  of  Virginia ,  That, 
so  soon  as  the  Legislatures  of  Maryland  and  Pennsylvania,  and  the 
Congress  of  the  United  States,  shall  assent  to  the  provisions  of  this 
act,  arid  the  Potomac  Company  shall  have  signified  their  assent  to  the 
same  by  tlTeir  corporate  act,  a  copy  whereof  shall  be  delivered  to  the 
Executives  of  the  several  States  aforesaid,  and  to  the  Secretary  of 
the  Treasury  of  the  United  States,  there  shall  be  appointed  by  the 
said  Executives  and  the  President  of  the  United  States,  three  com¬ 
missioners  on  the  part  of  each  State,  and  the  Government  of  the  Unit¬ 
ed  States,  any  one  of  whom  shall  Le  competent  to  act  for  his  respective 
Government.  The  said  commissioners  shall  cause  books  to  be  opened 
at  siich  times  and  places  as  they  shall  think  fit,  in  their  respective 
States,  and  the  District  of  Columbia,  under  the  management  of  such 
persons  as  they  shall  appoint,  for  receiving  subscriptions  to  the  capi¬ 
tal  stock  of  the  Company,  hereinafter  incorporated  :  which  subscrip¬ 
tions  may  be  made  either  in  person  or  by  poweh  of  attorney  ,*  ami 


44 


notice  shall  be  given  in  such  manner  as  may  be  deemed  advisable,  by 
one  or  more  of  the  said  commissioners,  of  the  time  and  places  of 
opening  the  books. 

“  2.  Aiid  the  said  commissioners  shall  cause  the  books  to  be  kept 
open  at  least  forty  days.  And,  within  twenty  days  after  the  expira¬ 
tion  thereof,  shall  call  a  general  meeting  of  the  subscribers  *at  the  city 
of  Washington,  of  which  meeting  notice  shall  be  given,  by  a  majority 
of  the  commissioners  aforesaid,  in  at  least  four  of  the  newspapers 
printed  in  Pennsylvania,  Maryland,  Virginia,  and  the  District  of  Co¬ 
lumbia,  at  least  twenty  days  next  before  the  said  meeting ;  and  such 
meeting  shall  and  may  be  continued  from  day  to  day,  until  the  busi¬ 
ness  is  finished  ;  and  the  commissioners,  at  the  time  and  place  afore¬ 
said,  shall  lay  before  such  of  the  subscribers  as  shall  meet  according 
to  the  said  notice,  the  book  containing  the  state  of  the  said  subscrip¬ 
tions;  and  if  one-fourth  of  the  capital  sum  of  six  millions  of  dollars 
should  appear  not  to* have  been  subscribed,  then  the  said  commission¬ 
ers,  or  a  majority  of  them,  at  the  said  meeting,  are  empowered  to 
take  and  receive  subscriptions  to  make  up  such  deficiency,  and  may 
continue  to  take  and  receive  such  subscriptions  for  the  term  of  twelve 
months  thereafter  ;  and  a  just  and  true  list  of  all  the  subscribers,  with 
the  sum  subscribed  by  each,  shall  be  made  out,  and  returned  by  the 
said  commissioners,  or  by  a  majority  of  them,  under  their  hands,  to  the 
Board  of  Public  Works  of  this  State,  to  the  Governor  and  Council 
of  the  State  of  Maryland,  to  the  Secretary  of  State  of  the  State  of 
Pennsylvania,  and  to  the  Secretary  of  the  Treasury  of  the  United 
States,  to  be  carefully  preserved  ;  and  in  case  more  than  six  millions 
of  dollars  shall  be  subscribed,  then  the  sum  subscribed  shall  be  re¬ 
duced  to  that  amount,  by  the  said  commissioners,  or  a  majority  of 
them,  by  beginning  at  and  striking  off  a  share  from  the  largest  sub¬ 
scription  or  subscriptions,  and  continuing  to  strike  off  a  share  from  all 
subscriptions  under  the  largest,  and  above  one  share,  until  the  same  is 
reduced  to  the  capital  aforesaid,  or  until  a  share  is  taken  from  all 
subscriptions  above  one  share ;  and  lots  shall  be  drawn  between  sub¬ 
scribers  of  equal  sums,  to  determine  the  number  of  shares  which  each 
subscriber  shall  be  allowed  to  hold,  on  a  list  to  be  made  for  striking 
off  as  aforesaid ;  and  if  the  sum  subscribed  still  exceed  the  capital 
aforesaid,  then  to  strike  off,  by  the  same  rule,  until  the  sum  subscribed 
is  reduced  to  the  capital  aforesaid,  or  all  the  subscriptions  reduced  to 
one  share  respectively  ;  and,  if  there  still  be  an  excess,  then  lots  shall 
be  drawn  to  determine  the  subscribers  who  are  to  be  excluded,  in  or¬ 
der  to  reduce  the  subscription  to  the  capital  aforesaid  :  which  striking 
off  shall  be  certified  on  the  lists  aforesaid  ;  and  the  said  capital  stock 
of  the  company  hereby  incorporated,  shall  consist  of  six  millions  of 
dollars,  divided  into  sixty  thousand  shares,  of  one  hundred  dollars 
each  :  of  which  every  person  subscribing  may  take  and  subscribe  for 
one  or  more  whole  shares ;  and  such  subscriptions  may  be  paid  and 
discharged  either  in  the  legal  currency  of  the  United  States,  or  in  the 
certificates  of  stock  of  the  present  Potomac  Company,  at  the  par  or 
nominal  value  thereof,  or  in  the  claims  of  the  creditors  of  the  said 


45 


company,  certified  by  the  acting  President  and  Directors  to  have  been 
due,  for  principal  and  debt,  on  the  day  on  which  the  assent  of  the  said 
company  shall  have  been  signified  by  their  corporate  act,  as  herein¬ 
before  required  :  Provided ,  That  the  said  certificates  of  stock  shall 
not  exceed,  in  the  whole  amount,  the  sum  of  three  hundred  and  eleven 
thousand  one  hundred  and  eleven  dollars  and  eleven  cents ;  nor  the 
said  claims  the  sum  of  one  hundred  and  seventy-five  thousand  eight 
hundred  dollars  :  Provided ,  also ,  That  the  stock  so  paid  for  in  certifi¬ 
cates  of  the  stock  of  the  present  company,  and  of  the  debts  due  from 
the  said  company,  shall  be  entitled  to  dividend,  only  as  hereinafter 
provided  :  and  that  no  payment  shall  be  received,  in  such  certificate 
of  stock,  until  the  Potomac  Company  shall  have  executed  the  con.- 
veyance  prescribed  by  the  thirteenth  section  of  this  act :  And  pro¬ 
vided ,  That,  unless  one-fourth  of  the  said  capital  shall  be  subscribed, 
as  aforesaid,  all  subscriptions  made  in  dbnsequence  of  this  act  shall 
be  void;  and,  in  case  one-fourth,  and  less  than  the  whole  capital,  shall 
be  subscribed  as  aforesftd,  then  the  said  commissioners,  or  a  majority 
of  them,  are  hereby  empowered  and  directed  to  take  and  receive  the 
subscriptions,  which  shall  first  be  offered  in  whole  shares,  as  afore¬ 
said,  until  the  deficiency  shall  b§  made  up;  a  certificate  of  which  ad¬ 
ditional  subscription  shall  be  made,  under  the  hands  of  said  commis¬ 
sioners,  or  a  majority  of  them,  for  the  time  being,  and  returned  as 
aforesaid. 

“  3.  And  be  it  further  enacted.  That,  whenever  ope-fourth,  or  a 
greater  part  of  the  said  stock  shall  have  been  subscribed,  in  the  man¬ 
ner  aforesaid,  then  the  subscribers,  their  heirs  and  assigns,  shall  be, 
and  are  hereby  declared  to  be.  incorporated  into  a  company,  by  the 
name  of  the  “  Chesapeake  and  Ohio  Canal  Company,”  and  may  sue, 
$nd  be  sued,  and,  as  such,  shall  have  perpetual  succession,  and  a  com¬ 
mon  sea!  ;  and  the  estates,  rights,  and  interests,  of  the  said  company, 
shall  be  adjudged  and  taken  in  law  to  be  real  estate;  and  it  shall, 
thereupon,  be  the  duty  of  the  said  commissioners,  or  a  majority  of 
them,  to  call  a  general  meeting  of  the  said  subscribers,  at  such  time 
and  place,  as  they,  or  a  majority  of  them,  shall  appoint,  after  adver¬ 
tising  the  same  in  such  public  prints  as  they,  or  a  majority  of  them, 
may  think  proper;  and  such  of  the  said  subscribers  as  shall  be  present 
at  the  said  meeting,  or  a  majority  of  them,  are  hereby  empowered  and 
required  to  elect  a  President  and  six  Directors,  for  conducting  the 
said  undertaking,  and  mana'ging  all  the  said  company’s  business  and 
concerns,  for  and  during  such  time,  not  exceeding  three  years,  as 
the  said  subscribers,  or  a  majority  of  them,  shall  think  fit ;  and,  in 
counting  the  votes  of  all  general  meetings  of  the  said  company,  each* 
member  shall  be  allow  ed  one  vote  for  every  share,  as  far  as  ten  shares, 
and  one  vote  for  every  five*shares  above  ten,  by  him  or  her  held  at 
the  time,  in  the  stock  of  the  said  company  :  and  any  proprietor,  by 
writing,  under  his  or  her  hand,  executed  before  two  witnesses,  may 
depute  any  other  member  or  proprietor  to  vote  and  act  as  proxy  for 
him  or  her,  at  any  general  meeting  :  Provided ,  also ,  That  no  officer 
or  director  of  said  company  shall,  under  any  circumstances,  be  allow¬ 
ed  to  vote  on  any  stock  but  his  own.  » 


46 


4.  And  be  it  further  enacted ,  That  the  said  President  and  Directors* 
and  their  successors,  or  a  majority  of  them,  assembled,  shall  have 
full  power  and  authority  to  appoint,  and,  at  their  pleasure,  dismiss, 
such  engineer  or  engineers,  and  agent  or  agents,  as  they  may  deem 
expedient,  and  to  fix  their  compensation ;  and  to  agree  with  any  per¬ 
son  or  persons,  on  behalf  of  the  said  company,  to  cut  canals,  erect 
flams,  open  feeders,  construct  locks,  and  perform  such  other  works, 
as  they  shall  judge  necessary.' or  expedient  for  completing  the  canal 
hereinbefore  mentioned  and  described  ;  and,  out  of  the  money  arising 
from  the  subscriptions  and  tolls,  and  other  aids,  hereinafter  given,  to 
pay  for  the  same,  and  to  repair  and  keep  in  order  the  said  canals, 
locks,  and  other  works  necessary  thereto,  and  to  defray  all  incidental 
charges;  and  also  to  appoint  a  treasurer,  clerk,  and  other  officers, 
toll-gatherers,  managers,  and  servants,  as  they  shall  judge  requisite, 
and  to  agree  for,  and  settle,  their  respective  wages  or  allowances ;  and 
to  settle,  pass,  and  sign  their  accounts;  and  also  to  make  and  estab¬ 
lish  rules  of  proceeding,  and  to  transact  all  ot#er  business  and  con¬ 
cerns  of  the  said  company,  in  and  during  the  intervals  between  the 
general  meetings  of  the  same ;  and  they  shall  be  allowed,  as  a  com¬ 
pensation  for  their  trouble  therein,  suck  sum  of  money  as  shall,  by  a 
general  meeting  of  the  stockholders,  be  determined  :  Provided ,  always , 
Tlyit  the  treasurer  shall  give  bond,  in  such  penalty,  and  with  such 
security,  as  the  said  President  and  Directors,  or  a  majority  of  them, 
shall  direct,  for  the  true  ami  faithful  discharge  of  the  trust  reposed  in 
him  ;  and  that  the  allowance  to  be  made  him  for  his  services  shall  not 
exceed  three  dollars  in  the  hundred  for  the  disbursements  by  him 
made  ;  and  that  no  officer  in  the  company  shall  have  any  vote  in  the 
settlement  or  passing  of  his  own  account. 

“  5.  And  be  it  further  enacted,  That,  on  all  subscriptions  which  shall 
not  be  paid,  as  hereinbefore  provided,  in  the  certificates  of  the  stock, 
or  debts  of  the  present  Potomac  Company,  there  shall  be  paid,  at  the 
time  of  subscription,  on  each  share,  one  dollar ;  and  thereafter,  when 
the  company  shall  be  formed,  the  stock  subscribed  shall  be  paid  in 
such  instalments,  and  at  such  times,  as  the  President  and  Directors 
shall,  from  time  to  time,  require,  as  the  work  advances  :  Provided , 
That  not  more  than  one-third  part  shall  be  demanded  within  any  year 
from  the  commencement  of  the  work;  nor  any  payment  demanded, 
until  at  least  sixty  days’  public  notice  thereof  shall  have  been  given, 
in  such  public  newspapers  as  the  said  Pre'sident  and  Directors  shall 
direct  such  notices  to  be  published  in  :  and,  whenever  any  subscriber 
shall  fail  to  pay  any  instalment,  called  for  by  the  company,  it  shall 
afnl  may  be  lawful  for  the  company,  upon  motion  to  be  made  in  any 
court  of  record,  after  ten  days’  notice,  to  obtain  judgment  against 
the  subscriber  so  failing  to  pay  ;  or  the  said  comply,  at  their  option, 
may,  after  giving  sixty  days’  notice,  in  such  public  newspaper,  print¬ 
ed  within  the  District  of  Columbia,  as  they  may  judge  proper,  sell 
the  stock  of  such  subscriber ;  and,  if  the  proceeds  of  any  such  sale 
shall  exceed  the  sum  demanded, the  surplus,  after  paying  the  expenses 
of  such  sale,  shall  be  paid  to  the  subscriber  so  failing,  or  to  his  legal 


47 


representatives;  and  the  purchaser,  at  such  sale,  shall  become  a 
stockholder,  and  be  subject  to  the  same  rules  and  regulations,  and  en¬ 
titled  to  the  same  privileges,  rights,  and  emoluments,  kas  original  sub¬ 
scribers  under  this  act.” 

“  9.  And  be  it  enacted ,  That,  for  and  in  consideration  of  the  expenses 
the  said  stockholders  will  be  at,  not  only  in  cutting  the  said  canal, 
erecting  locks  and  dams,  providing  aqueducts,  feeders,  and  other 
works,  and  in  improving  and  keeping  the  same  in  repair,  the  said  ca 
nal  and  all  other  works  aforesaid,  or  required  to  improve  the  naviga¬ 
tion  thereof,  at  any  time  hereafter,  with  all  their  profits,  subject  to  the 
limitations  herein  provided,  and  to  none  other,  shall  be,  and  the  same 
ar6  hereby,  vested  in  the  said  stockholders,  their  heirs  and  assigns, 
forever,  as  tenants  in  common,  in  proportion  to  their  respective  shares, 
and  be  forever  exempt  from  the  payment  of  any  tax,  imposition,  or 
assessment,  whatsoever  ;  and  that  it  shall  and  may  be  lawful  for  the 
said  president  and  directors,  at  all  times,  forever  hereafter,  to  de¬ 
mand  and  receive,  at  such  places  as  shall  hereafter  be  appointed  by 
the  president  and  directors  aforesaid,  tolls  for  the  passage  of  vessels, 
boats,  rafts,  produce,  and  all  other  articles,  at  such  rates  as  the  said 
president  and  directors  may  hereafter  allow  and  establish,  according 
to  the  provisions  of  this  act. 

“ 10.  And  belt  enacted,  That,  if  the  Commissioners  hereby  required 
to  be  appointed,  shall  die,  resign,  or  refuse  to  act,  the  vacancy  occa¬ 
sioned  thereby  shall  he  filled  by  the  same  authority  by  which  the  ori¬ 
ginal  appointment  was  made  ;  and  the  person  or  persons  appointed  to 
fill  such  vacancy  shall  have  all  the  power  and  authority  which  was 
vested  in  the  commissioner  whose  place  he  or  they  shall  be  appointed 
to  supply  ;  and,  when  any  part  of  the  canal  aforesaid  shall  have  been 
completed,  according  to  the  true  intent  and  meaning  of  this  act,  the 
president  and  directors  of  the  company  hereby  created  shall  have  pow¬ 
er,  and  it  shall  be  their  duty,  to  ordain  and  establish  a  rate  of  toils  to 
be  paid  upon  boats,  vessels,  rafts,  or  other  property,  passing  on  the 
part  of  the  canal  so  completed,  and  so,  from  time  to  time,  as  part  or 
parts  shall  be  completed,  and  until  the  eastern  section  thereof  shall 
be  finished  up  to  the  mouth  of  Savage  river  or  creek,  and,  thereafter, 
until  the  entire  canal  shall  have  been  finished  according  to  the  true 
intent  and  meaning  of  this  act.  For  the  collection  of  which  tolls,  the 
•  president  and  directors  shall  have  power  to  establish  so  many  toll 
houses,  and,  at  their  pleasure,  to  appoint  and  remove  so  many  col  . 
lectors,  and  at  such  places,  as,  from  time  to  time,  they  may  judge  ex¬ 
pedient  ;  and  the  said  president  and  directors  shall  have  full  authority, 
subject,  to  the  direction  and  control  of  a  majority  in  interest  of  the 
stockholders  represented  in  any  general  meeting,  to  regulate  and  fix 
a  tariff  of  tolls,  not  exceeding  an  average  of  two  cents  per  ton  per  mile ; 
and  so  to  adjust  the  said  tolls  in  relation  to  the  capacity  or  burthen 
of  the  boats,  and  the  dimensions  of  the  rafts  passing  the  locks  of  the 
said  canal,  as  to  promote  economy  of  water  and  time  in  the  naviga¬ 
tion  thereof.  ‘ 


t 


48 

“  1 1.  And  be  it  enacted ,  That  the  president  and  directors  shall  an¬ 
nually,  or  semi-annually,  declare  and  make  such  dividend  of  the  nett 
profits,  from  the  tolls  to  be  received,  according  to  the  provisions  of  this 
act,  and  from  the  other  resources  of  the  company,  as  they  may  deem 
advisable,  after  deducting  therefrom  the  necessary  current,  and  the 
probable  contingent  expenses,  to  be  divided  among  the  proprietors  of 
the  stock  of  the  said  company,  in  proportion  to  their  respective  shares, 
in  manner  following,  that  is  to  say  :  if  such  nett  profits  shall  not  ex¬ 
ceed  ten  per  cent,  on  the  amount  of  shares,  which  shall  have  been  paid 
for  in  current  money  of  the  United  States,  and  expended  on  the 
eastern  section  of  the  said  canal,  then  the  whole  therpof  shall  be  di¬ 
vided  among  the  holders  of  such  shares,  in  proportion  to  their  respect¬ 
ive  shares;  but  if  such  nett  profits  shall  exceed  the  rate  often  per 
cent,  per  annum,  in  any  year,  on  such  amount  of  stock,  then  the  sur¬ 
plus  shall  be  divided  among  such  stockholders  as  shall  have  paid  for 
their  shares  in  certificates  of  the  debts  of  the  Potomac  Company,  until 
they  shall  therefrom  have  received  a  dividend  of  six  per  cent.  :  and,  if 
a  surplus  yet  remain,  the  same  shall  be  divided  among  the  stockhold¬ 
ers  who  shall  have  paid  for  their  shares  in  certificates  of  the  stock  of 
the  Potomac  Company,  until  they  shall  have  received  therefrom  a  di¬ 
vidend  of  six  per  cent,  per  annum  on  such  shares  :  and,  if  a  surplus 
still  remain,  so  long  as  the  western  section  of  the  canal  shall  remain 
unfinished,  such  surplus  shall  be  applied,  from  time  to  time,  to  the 
construction  and  completion  thereof,  in  such  mode  as  the  president  and 
directors,  under  such  rules  and  regulations,  not  inconsistent  with  the 
Constitution  of  the  United  States,  or  of  the  several  States  aforesaid, 
as  the  stockholders,  or  a  majority  thereof,  in  general  meeting,  may 
prescribe,  until  the  western  section  of  the  canal  shall  be  also  com¬ 
pleted  ;  after  which,  if  such  surplus  shall  still  arise,  the  same  shall  be 
divided  among  all  the  stockholders,  without  discrimination,  in  pro¬ 
portion  to  their  respective  shares,  until  the  annual  dividend  thereon 
shall  have  reached  15  per  cent.;  beyond  which'it  shall  never  extend. 
But,  should  the  nett  revenue  of  the  company  exceed  that  amount 
for  any  two  years  in  succession,  then  such  excess  shall  be  applied,  by 
the  president  and  directors,  in  such  mode  as  shall  be  agreed  on  by  a 
majority  of  the  stockholders  convened  in  general  meeting  :  first,  to 
strengthening  and  improving  the  works  of  the  canal  of  every  descrip¬ 
tion  requiring  the  same ;  next,  to  the  accommodation,  where  not  al* 
ready  provided,  of  the  inhabitants  of  the  shores  of  the  river  Potomac, 
and  of  the  country  drained  by  the  tributary  streams  thereof,  now  navi¬ 
gable,  or  which  may  hereafter  become  so,  by  affording  to  them,  in  the 
best  practicable  mode,  a  safe  and  easy  access  to  the  canal,  from  the 
surface  of  the  main  river,  and  of  the  said  streams  emptying  therein  ; 
and,  last  of  all,  to  the  erection  of  such  walls,  of  stone  or  other  materials, 
along  the  water  margin  of  the  canal,  as  shall  fit  the  same  for  the  navi¬ 
gation  of  steam  boats  of  a  size  adapted  to  the  said  canal.  And  should 
the  said  tolls  continue,  after  all  such  improvements  have  been  com¬ 
pleted,  to  nett  more  than  fifteen  per  cent,  per  annum  to  the  stockhold¬ 
ers,  for  any  two  years  in  succession,  the  tolls  upon  the  same  shall  be 


49 


mluced  by  the  president  and  directors,  according  to  some  just  and 
equitable  ratio,  till  the  said  dividend  shall  fall  to  fifteen  per  cent,  per 
annum  :  Provided ,  That,  should  the  said  dividend  thereafter  sink  be¬ 
low  fifteen  per  cent,  the  said  tolls,  or  a  part  thereof,  may  be  renewed, 
till  the  said  nett  dividend  reaches  that  amount.  And  for  any,  or  all 
the  within  mentioned  purposes,  the  said  president  and  directors  are 
empowered  to  borrow,  in  behalf  of  the  company,  on  the  credit  of  such 
excess  of  tolls,  such  sum  or  sums  of  money,  as  they  may  deem  ex¬ 
pedient,  at  such  rate  of  interest,  and  with  such  delay  of  payment,  as 
they  may  stipulate,  with  the  previous  consent  of  a  majority  of  the 
stockholders,  in  general  meeting  convened. 

“  12.  And  be  it  further  enacted ,  That  it  shall  be  the  duty  of  the  Pre¬ 
sident  and  Directors  of  the  Chesapeake  and  Ohio  Canal  Company,  so 
Jong  as  there  shall  be  and  remain  any  creditor  of  the  Potomac  Com¬ 
pany,  who  shall  not  have  vested  his  demand  against  the  same  in  the 
stock  of  the  Chesapeake  and  Ohio  Canal  Company,  to  pay  to  such 
creditor  or  creditors,  annually,  such  dividend,  or  proportion  of  the 
nett  amount  of  the  revenues  of  the  Potomac  Company,  on  an  average 
of  the  last  five  years  preceding  the  organization  of  the  said  proposed 
company,  as  the  demand  of  the  said  creditor  or  creditors  at  this  time, 
may  bear  to  the  whole  debt  of  one  hundred  and  seventy-five  thousand 
eight  hundred  dollars. 

u  13.  And  be  it  further  enacted ,  That  whenever  the  Potomac  Com- 
pany  shall  have  declared  its  assent  to  the  provisions  of  this  act,  in  the 
manner  hereinbefore  provided,  it  shall  be  lawful  for  the  said  company 
to  surrender  its  charter,  and  convey,  in  due  form  of  law,  to  the  Ches¬ 
apeake  and  Ohio  Canal  Company,  hereby  incorporated,  all  the  pro¬ 
perty,  rights,  and  privileges,  by  them  owned,  possessed,  and  enjoyed, 
under  the  same ;  and  thereupon  it  shall  be  lawful  to  and  for  the  said 
company,  hereby  proposed  to  be  created,  to  accept  such  surrender 
and  transfer,  and  to  hold,  possess,  use,  and  occupy,  all  the  said  pro¬ 
perty,  rights,  and  privileges,  in  the  same  manner,  and  to  the  same  ef¬ 
fect,  as  the  said  Potomac  Company  now  hold,  possess,  and  occupy  the 
same  by  law;  and  thereupon  the  charter  of  the  said  Potomac  Compa¬ 
ny  shall  be,  and  the  same  is  hereby,  vacated  and  annulled,  and  all 
the  rights  and  powers  thereby  granted  to  the  Potomac  Company,  shall 
be  vested  in  the  company  hereby  incorporated ;  and  it  shall  be  the 
duty  of  the  said  last  mentioned  company,  until  every  section  of  the 
contemplated  canal  shall  be  completed,  so  as  to  be  used  and  enjoyed 
for  the  purposes  of  navigation,  to  keep  the  corresponding  part  of  the 
river  in  a  proper  state  for  navigation,  and  in  good  order  as  the  same 
now  is ;  and,  in  default  thereof,  they  shall  be  in  all  things  responsi¬ 
ble,  in  the  same  manner  as  the  Potomac  Company  is  now  responsi¬ 
ble.  And  in  all  rivulets,  streams,  creeks,  and  rivers,  required  for 
the  western  section  of  the  said  Chesapeake  and  Ohio  Canal,  the  same 
rights  shall  be,  and  are  hereby,  vested  in  the  Chesapeake  and  Ohio 
Canal  Company,  by  this  act,  as  the  charter  of  the  Potomac  Company 
vested  in  the  said  company,  in  relation  to  the  waters  of  the  Potomac, 
and  the  tributary  streams  thereof. 

5 


50 


<»  14.  And  be  it  enacted ,  That  the  said  canal,  and  the  works  to  be 
erected  thereon  in  virtue  of  this  act,  when  completed,  shall  forever 
thereafter  be  esteemed  and  taken  to  be  navigable  as  a  public  high- 
way,  free  for  the  transportation  of  all  goods,  commodities,  and  pro¬ 
duce,  whatever,  on  payment  of  the  tolls  to  be  imposed,  as  provided  by 
this  act ;  and  no  other  toll  or  tax  whatever,  for  the  use  of  the  said  ca¬ 
nal  and  the  works  thereon  erected,  shall,  at  any  time  hereafter,  be  im¬ 
posed,  but  by  consent  of  the  said  States,  and  of  the  United  States. 

66  15.  And  whereas,  it  is  necessary  for  the  making  of  the  said  canaL 
locks,  dams,  ponds,  feeders,  and  other  works,  that  a  provision  should 
be  made,  for  condemning  a  quantity  of  land  for  the  purpose  :  Be  it 
enacted ,  That  it  shall  and  may  be  lawful  for  the  said  president  and 
directors,  or  a  majority  of  them,  to  agree  with  the  owners  of  any 
land,  through  which  the  said  canal  is  intended  to  pass,  for  the  pur¬ 
chase,  or  use  and  occupation  thereof;  and,  in  case  of  disagreement, 
or  in  case  the  owner  thereof  shall  be  a  femme  covert,  under  age,  non 
compos,  or  out  of  the  State  or  county,  on  application  to  a  justice  of 
the  county  in  which  such  land  shall  be,  the  said  justice  of  the  peace 
shall  issue  his  warrant,  under  his  hand,  to  the  sheriff  of  the  county, 
to  summon  a  jury  of  eighteen  inhabitants  of  his  county,  not  related  to 
the  parties,  nor  in  any  manner  interested,  to  meet  on  the  land  to  be 
valued,  at  a  day  to  be  expressed  in  the  warrant,  not  less  than  ten,  nor 
more  than  twenty  days  thereafter ;  and  the  sheriff,  upon  receiving 
the  said  warrant,  shall  forthwith  summon  the  said  jury,”  &c.  &c. 

“  16.  And  be  it  enacted ,  That  it  shall  be  the  duty  of  the  company 
hereby  incorporated,  to  cut,  make,  and  construct  the  said  canal,  with 
good  and  sufficient  locks,  on  the  most  improved  plan  for  expedition 
in  the  use  thereof,  and  with  a  width  of  not  less  than  forty  feet  at  the 
surface  of  the  water  therein,  or  of  twenty-eight  feet  at  the  bottom 
thereof,  unless  the  quality  of  the  soil  shall  require  a  narrow7  base  to 
admit  of  a  sufficient  slope  to  preserve  the  banks  from  sliding  down, 
and  sufficient  to  admit,  at  all  seasons,  the  navigation  of  boats  and 
rafts,  with  a  depth  of  four  feet  water  at  the  least;  and  wherever 
wastes  shall  be  essential  to  the  security  of  the  said  canal,  and  in  no 
other  situation  whatever,  along  the  same,  the  waste  water  of  the 
said  canal  may  be,  from  time  to  time,  sold  or  disposed  of  by  the  said 
company,  for  the  purpose  of  supplying  such  works  and  machinery  as 
require  a  water  power.  And  along  one  side  at  least  of  the  said  ca¬ 
nal,  and  such  aqueducts  as  it  may  .render  necessary,  there  shall  be 
provided  throughout  its  whole  extent,  a  towing  path  of  sufficient 
breadth  to  apply  the  power  of  horses  to  the  navigation  thereof.” 

“  19.  And  be  it  enacted,  That,  whenever  it  shall  become  necessary  to 
subject  the  lands  of  any  individual  to  the  purposes  provided  for  in 
this  act,  and  their  consent  cannot  be  obtained,  it  shall  and  may  be 
lawful  for  the  company  to  enter  upon  such  lands,  and  proceed  to  the 
execution  of  such  works,  as  may  be  requisite ;  and  that  the  pendency 
of  any  proceedings  in  any  suit  in  the  nature  of  a  writ  of  ad  quod  dam¬ 
num,  or  any  other  proceedings,  shall  not  hinder  or  delay  the  progress 
of  the  work  ;  and  it  shall  be  the  duty  of  every  court  to  gfre  prece- 


51 


dence  to  controversies  which  may  arise  between  the  company  created 
by  this  act,  and  the  proprietors  of  land  sought  to  be  condemned  for 
public  uses,  and  to  determine  them  in  preference  to  all  other  causes. 

20.  And  be  it  enacted ,  That  the  said  canal  shall  be,  and  the  same 
is  hereby,  divided  into  two  sections,  to  be  denominated  first  and  se¬ 
cond,  or  eastern  and  western,  respectively  ;  that  Ihe  first,  or  eastern 
section,  shall  begin  at  the  District  of  Columbia,  on  tide  water,  and 
terminate  at  or  near  the  bank  of  Savage  river,  or  creek,  which  emp¬ 
ties  into  the  north  branch  of  the  Potomac,  at  the  base  of  the  Alle¬ 
ghany  mountain  :  that  the  second,  or  western  section,  shall  com¬ 
mence  at  the  said  termination,  and  extend  along  the  valley  of  Sa¬ 
vage  river,  or  creek,  so  far  as  the  same,  or  any  branch  thereof  as 
may  reach  some  convenient  point  thereon,  for  connecting  the  eastern 
and  western  waters,  by  a  tunnel  through,  or  an  open  cut  across,  the 
dividing  ridge  between  the  same  :  and  thence,  after  crossing  the  said 
dividing  ridge,  shall  proceed-  to  the  highest  steamboat  navigation  of  ' 
the  Ohio  river,  or  of  some  one  tributary  stream  thereof,  in  such  di¬ 
rection  as,  in  the  opinion  of  the  said  President  and  Directors,  shall 
be  best  calculated  for  the  attainment  of  the  end  set  forth  in  the  pre¬ 
amble  of  this  act  :  that  the  said  President  and  Directors  shall  first 
construct  the  eastern  section  aforesaid,  out  of  the  capital  stock  here¬ 
inbefore  mentioned,  and  shall  next  proceed  to  construct,  with  all  pos¬ 
sible  despatch,  the  western  section  thereof.  In  case  the  said  com¬ 
pany  shall  not  begin  the  said  work  within  two  years  after  the  com¬ 
pany  shall  have  been  formed,  or  if  the  work,  having  been  so  begun, 
shall  not  be  diligently  prosecuted,  so  that  one  hundred  miles  of  the 
said  canal,  with  the  adequate  locks  and  incidental  improvements, 
shall  not  be  completed,  and  in  fit  order  for  navigation*  in  the  term  of 
five  years  from  the  commencement  of  the  work,  then  all  interest  of 
the  said  company  in  the  navigation  and  tolls  shall  cease  and  deter¬ 
mine,  and  their  charter  shall  be  thereafter  taken  to  be  null  and  void; 
and  so,  in  like  manner,  shall  the  said  charter  be  null  and  void,  if  the 
entire  eastern  section  be  not  completed  in  the  term  of  twelve  years 
from  the  said  commencement.  And  should  the  said  company  fail  to 
begin  the  western  section  of  the  said  canal  in  two  years  after  the  time 
allowed  as  aforesaid  for  the  completion  of  the  eastern  section  ;  or, 
having  begun  the  western  section,  shall  fail  to  complete  the  same  in 
six  years  after  such  beginning,  then  all  right,  title,  and  interest,  of 
the  said  company,  in  the  said  western  section,  shall  cease  and  deter¬ 
mine ;  and  the  several  States  aforesaid  shall  have  full  authority  to 
incorporate  another  company  for  the  completion  of  such  section,  or  to 
complete  the  same  in  any  other  mode  that  they  may  deem  expedient. 
And  if,  after  the  completion  of  the  said  canal  and  locks,  the  President 
and  Directors  shall  fail  to  keep  the  same  in  repair  for  twelve  months 
at  any  time,  then,  in  like  manner,  the  interest  of  the  company  in  the 
navigation  and  tolls  shall  cease,  and  their  charter  shall  be  forfeited. 

21.  And  be  it  further  enacted ,  That  the  right  to  the  waters  of  the 
river  Potomac,  for  the  purpose  of  any  lateral  canal  or  canals,  which 
the  State  of  Virginia  or  Maryland  may  authorize  to  be  made  in  con- 


nivDV 


52 


nexion  with  the  said  canal,  is  reserved  to  the  said  States  respectively; 
that  a  similar  right  is  reserved  to  the  State  of  Pennsylvania,  in  rela¬ 
tion  to  the  rivers  and  streams  within  the  territory  of  that  State,  the 
waters  of  which  may  be  used  in  supplying  the  western  section  of  the 
said  canal ;  that  the  Government  of  the  United  States  shall  retain  the 
power  to  extend  the  said  canal  in  or  through  the  District  of  Colum¬ 
bia,  on  either  or  both  sides  of  the  river  Potomac  :  Provided ,  That, 
before  this  act  shall  take  effect,  the  Congress  of  the  United  States  shall 
authorize  the  States  of  Virginia  and  Maryland,  t>r  either  of  them,  to 
take  and  continue  a  canal  from  any  point  of  the  above  named  canal, 
or  the  termination  thereof,  through  the  territory  of  the  District  of 
Columbia,  or  any  part  thereof,  to  the  territory  of  the  said  States,  or 
either  of  them,  in  any  direction  they  may  deem  proper,  upon  the  same 
terms  and  conditions,  and  with  all  the  rights,  privileges,  and  powers 
of  every  kind  whatsoever,  that  the  company  incorporated  by  this  act 
have  to  make  the  Chesapeake  and  Ohio  Canal :  And ,  provided  also , 
That,  in  taking  or  extending  such  lateral  canal  or  canals  through  the 
District  of  Columbia,  by  either  of  the  said  States,  no  impediment  or 
injury  be  done  to  the  navigation  of  the  said  Chesapeake  and  Ohio 
Canal. 

22.  This  act,  or  so  much  thereof  as  respects  the  canal  and  works 
designed  to  be  constructed  in  the  District  of  Columbia,  and  the  States 
of  Virginia  and  Maryland,  shall  take  effect,  with  such  necessary  mo¬ 
dification  in  the  construction  thereof,  as  shall  fit  it  for  such  limited 
application  or  use,  upon  the  assent  of  the  Congress  of  the  United 
States,  and  the  Legislature  of  Maryland  being  given  thereto  ;  and 
upon  its  receiving  the  further  assent  of  the  Legislature  of  Pennsylva¬ 
nia,  the  whole  .and  every  section  and  part  thereof  shall  be  valid  and 
in  full  force  and  operation. 

23.  Be  it  further  enacted ,  That  the  assent  of  the  Congress  of  the 
United  States,  required  by  the  first  section  of  this  act,  and  the  au¬ 
thority  conferred  by  the  fourteenth  section,  is  understood  and  taken 
to  relate  only  to  their  authority  as  the  legislature  of  the  District  of 
Columbia. 

24.  Be  it  further  enacted ,  That  all  acts,  and  parts  of  acts,  coming 

within  the  purview  of  this  act,  shall  be,,  and  the  same  are  hereby,  re¬ 
pealed.  , 


ACT  OF  THE  STATE  OF  MARYLAND. 

An  act  to  confirm  An  act  of  the  General  Assembly  of  the  State  of  Vir¬ 
ginia,  entitled  “An  act  incorporating  the  Chesapeake  and  Ohio  Canal 
Company [ Passed  December  session ,  1 824.] 

Whereas  the  General  Assembly  of  Virginia  have  heretofore,  at  the 
December  session  of  the  said  General  Assembly,  in  the  year  eigh- 


58 


teen  hundred  and  twenty-three,  passed  an  act,  entitled  “An  act 
incorporating  the  Chesapeake  and  Ohio  Canal  Company, 99  in  the 
substance  or  words  following  : 

[See  the  preceding  Act.] 

Therefore ,  be  it  enacted  by  the  General  Assembly  of  Maryland ,  That 
the  said  act  of  the  General  Assembly  of  Virginia  be,  and  the  same  is 
hereby,  accepted,  assented  to,  and  confirmed. 

And  be  it  further  enacted  and  declared ,  That,  by  confirming  and  ac¬ 
cepting  the  act  of  Virginia,  it  is  not  intended  by  the  Legislature  of 
Maryland  to  deny  to  the  Congress  of  the  United  States  the  constitu¬ 
tional  power  to  legislate  on  the  subjects  of  roads  and  canals.  And  for 
the  purpose  of  removing  all  doubt  as  to  the  right  of  the  State  of  Ma¬ 
ryland  to  intersect  the  said  Chesapeake  and  Ohio  Canal,  for  the  pur¬ 
pose  of  conducting  a  lateral  canal  or  canals  to  Baltimore,  or  else¬ 
where  in  the  State  of  Maryland,  from  that  part  of  the  said  Chesapeake 
and  Ohio  Canal  which  shall  be  within  the  District  of  Columbia — 
Beit  further  enacted  and  declared,  That  the  said  act  of  Virginia  has 
been  accepted  and  confirmed  by  the  Legislature  of  Maryland,  on  the 
express  condition  that  the  act  of  Congress  contemplated  by  the  twen¬ 
ty-first  section  of  the  Virginia  act,  shall  direct  and  provide  some  safe 
and  practicable  mode  whereby  such  lateral  canal  or  canals  may  be 
secured  to  the  State  of  Maryland,  and  whereby,  also,  it  may  he  de¬ 
termined  whether  such  lateral  canal  or  canals  will  injure  the  said 
Chesapeake  and  Ohio  Canal,  within  the  meaning  and  intention  of  the 
said  twenty-first  section  of  the  Virginia  act. 


ACT  OF  THE  CONGRESS  OF  THE  UNITED  STATES. 

An  act  confirming  an  Act  of  the  Legislature  of  Virginia ,  entitled  “  An 
act  incorporating  the  Chesapeake  and  Ohio  Canal  Company and  an 
act  of  the  State  of  Maryland ,  confirming  the  same  — [ Approved  March 
3,  1825.] 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled ,  That  the  act  of  the 
Legislature  of  the  State  of  Virginia,  entitled  «  An  act  incorporating 
the  Chesapeake  and  Ohio  Canal  Company,”  be,  and  the  same  is  here¬ 
by,  ratified  and  confirmed,  so  far  as  may  be  necessary  for  the  purpose 
of  enabling  any  company  that  may  hereafter  be  formed  by  the  author¬ 
ity  of  said  act  of  incorporation,  to  carry  into  effect  the  provisions 
thereof,  in  the  District  of  Columbia,  within  the  exclusive  jurisdiction 
of  the  United  States,  and  no  further. 

Sec.  2.  And  be  it  further  enacted ,  That  should  the  State  of  Vir¬ 
ginia  or  Maryland  desire,  at  any  time,  to  avail  itself  of  the  right 
secured  to  it  by  the  twenty-first  section  of  the  act  aforesaid,  to  take 


54 


and  continue  a  canal  from  o.ny  point  of  the  Chesapeake  and  Ohio  Ca¬ 
nal,  to  any  other  point  within  the  territory  of  the  District  of  Colum¬ 
bia,  or  through  the  same,  on  application  to  the  President  of  the  Unit¬ 
ed  States,  by  the  Executive  of  the  State,  the  President  is  authorized 
and  empowered  to  depute  three  skilful  commissioners  of  the  United 
States’  Corps  of  Engineers,  to  survey  and  examine  so  much  of  the 
route  of  such  canal  as  may  effect,  in  any  manner,  the  navigation  of 
the  Chesapeake  and  Ohio  Canal.  The  said  commissioners,  or  a  ma¬ 
jority  of  them,  shall  ascertain,  ^s  far  as  practicable,  whether  the  ca¬ 
nal  proposed  to  be  constructed  by  the  State  aforesaid,  will  injure  or 
impede  the  navigation  of  the  Chesapeake  and  Ohio  Canal,  and  report 
to  the  President  of  the  United  States  the  facts  and  reasons  on  which 
they  may  ground  their  judgment  thereupon  ;  which  report  shall  be 
submitted  to  the  Congress  of  the  United  States  at  their  session  next 
ensuing  the  date  thereof,  for  their  decision  thereon  ;  and  if  Congress 
shall  be  of  opinion  that  the  said  canal  may  be  cut  in  the  manner  pro¬ 
posed  as  aforesaid,  without  impeding  or  injuring  the  navigation  of  the 
Chesapeake  and  Ohio  Canal,  the  same  shall  be  conclusive  thereon. 


ACT  OF  THE  STATE  OF  MARYLAND. 

Jin  act  for  the  promotion  of  Internal  Improvement. — [Passed  March  6, 

1826.] 

Sec.  1.  Beit  enacted  by  the  General  Assembly  of  Maryland ,  That, 
so  soon  as  the  Board  of  Public  Works  of  this  State  shall,  by  actual 
survey,  have  ascertained,  and  reported  to  the  Governor  and  Council, 
the  practicability  of  excavating  a  canal,  as  hereinafter  described, 
from  some  convenient  point  on  the  Potomac  river  intersecting  or  con¬ 
tinuing  the  Chesapeake  and  Ohio  Canal  to  the  city  of  Baltimore, 
there  shall  be  appointed,  by  the  Governor  and  Council,  three  com¬ 
missioners,  who  shall  cause  books  to  be  opened,  at  such  times  and 
places  as  may  be  determined  on  by  the  Board  of  Public  Works,  for 
the  purpose  of  receiving  subscriptions  to  the  capital  stock  of  the  com¬ 
pany  hereinafter  incorporated ;  which  subscriptions  may  be  made 
either  in  person  or  by  power  of  attorney,  notice  having  been  pre- 
*  viously  given,  in  such  manner  as  the  said  Board  of  Public  Works 
may  deem  expedient,  of  the  times  and  places  of  opening  the  said 
books. 

4.  Jlnd  be  it  enacted ,  That  the  said  President  and  Directors,  and 
their  successors,  or  a  majority  of  them  assembled,  shall  have  full 
power  and  authority  to  appoint,  and  at  their  pleasure  dismiss,  such 
engineer  or  engineers,  and  agent  or  agents,  as  they  may  deem  expe¬ 
dient,  and  to  fix  their  compensation,  and  to  agree  with  any  person  or 
persons  on  behalf  of  the  said  company,  to  cut  canals,  erect  dams, 
open  feeders,  construct  locks,  and  perform  such  other  works  as  they 
shall  judge  necessary  and  expedient,  for  completing  a  canal  from  the 


55 


termination  or  other  point  on  the  Chesapeake  and  Ohio  Canal,  to  be 
determined,  as  aforesaid,  by  the  Board  of  Public  Works,  to  the  city 
of  Baltimore;  &c. 

17.  And  be  it  enacted ,  That,  whenever  it  shall  become  necessary 
to  subject  the  lands  of  any  individuals  to  the  purposes  provided  for  in 
this  act,  and  their  consent  cannot  be  obtained,  it  shall  and  may  be 
lawful  for  the  Company  to  enter  upon  such  land,  and  proceed  to  the 
execution  of  such  works  as  may  be  requisite;  and  that  the  pendency 
of  any  proceedings  in  any  suit  in  the  nature  of  a  writ  of  ad  quod 
damnum,  or  any  other  proceedings,  shall  not  hinder  or  defay  the 
progress  of  the  work,  and  it  shall  be  the  duty  of  every  Court  to  give 
precedence  to  controversies  which  may  arise  between  the  Company 
created  by  this  act,  and  the  proprietors  of  land  sought  to  be  con¬ 
demned  for  public  uses,  and  #to  determine  them  in  preference  to  all 
other  causes. 

Sec.  19.  And  be  it  enacted,  That  the  Treasurer  of  the  Western 
Shore  be,  and  he  is  hereby,  authorized  and  required,  for  and  on  be¬ 
half  of  the  State,  to  subscribe  to  the  Chesapeake  and  Ohio  Canal 
Company  for  stock  to  the  whole  amount  of  the  stock  of  the  Potomac 
Company  owned  by  the  State,  and  of  the  debt  due  to  the  State  by 
the  said  Potomac  Company,  and  to  pay  for  the  same  in  the  certifi¬ 
cates  of  the  stock  of  the  Potomac  Company,  and  in  the  evidences  of 
the  debt  due  to  the  State,  certified  in  the  manner  specified  in  the 
charter  of  the  said  Chesapeake  and  Ohio  Canal  Company;  and  also 
to  subscribe  for  five  thousand  shares  of  the  stock  of  the  said  company, 
*  payable,  agreeably  to  the  terms  of  the  charter,  in  the  legal  curren¬ 
cy  of  the  United  States. 

Sec.  20.  And  be  it  enacted,  That  the  Treasurer  of  the  Western 
Shore  be,  and  he  is  hereby,  instructed  and  required,  in  like  manner, 
to  subscribe  for  five  thousand  shares  in  the  Maryland  Canal  Compa¬ 
ny  hereby  incorporated. 

Sec.  21.  And  be  it  enacted ,  That  the  sum  of  two  hundred  thousand 
dollars  shall  be,  and  the  same  is  hereby,  appropriated,  or  such  part 
thereof  as  may  be  necessary  to  drain,  embank,  and  render  dry  and 
arable,  the  low  lands  on  the  margins  of  such  rivers  and  creeks  of  the 
Eastern  Shore  of  this  State,  as  the  Board  of  Public  Works  may 
think  proper  and  recommend*  and  1o  complete  and  carry  into  effect 
such  plans  for  opening  and  improving  the  navigation  of  the  Poco- 
moke,  Manokin,  Wycomico,  Great  Choptank,  Chester,  Elk,  and 
North  East  Rivers,  as  the  Board  of  Public  Works  may  devise,  re¬ 
commend,  and  contract  for  on  behalf  of  the  State  of  Maryland:  Pro¬ 
vided,  That,  before  any  part  of  the  aforesaid  subscriptions,  except 
so  much  as  is  payable  in  the  stock  and  debt  of  the  Potomac  Compa¬ 
ny,  shall  be^nade,  or  any  part  of  the  sum  herein  appropriated  to  ex¬ 
ecute  the  improvements  contemplated  by  this  act  to  be  made,  on  the 
low  lands  situated  on  the  margins  of  the  aforesaid  rivers  and  creeks, 
or  to  execute  the  improvements  of  the  Pocombke,  Manokin,  Wyco¬ 
mico,  Great  Choptank,  Chester,  Elk,  and  North  East  Rivers,  be 
expended,  the  Congress  of  the  United  States  shall,  by  law,  authorize 


56 


a  subscription  for  not  less  than  ten  thousand  shares  of  the  capita! 
stock  of  the  Eastern  section  of  the  Chesapeake  and  Ohio  Canal,  and 
shall  enact  a  law  expressly  securing  to  the  State  of  Maryland,  and 
to  any  company  incorporated,  or  hereafter  to  be  incorporated  by  the 
said  State,  the  right  to  take  and  continue  a  canal  from  any  point  of 
the  Chesapeake  and  Ohio  Canal  through  the  Territory  of  Columbia, 
or  any  part  thereof,  to  the  said  State,  in  any  direction  it  may  deem 
proper,  upon  the  same  terms  and  conditions,  and  with  all  the  rights, 
privileges,  and  powers,  of  every  kind  whatsoever^  granted  to  the 
Chesapeake  and  Ohio  Canal  Company  by  the  act  of  incorporation, 
and  deciding  agreeably  to  the  act  of  Congress  passed  at  December 
session,  eighteen  hundred  and  twenty-four,  that  the  canal,  as  locat¬ 
ed  by  the  Board  of  Public  Works  under  the  authority  of  this  act,  may 
be  cut  without  impeding  or  injuring  the  navigation  of  the  Chesapeake 
and  Ohio  Canal.  Jlnd,  provided  also ,  That  the  Board  of  Public 
Works  shall  previously  ascertain  and  certify  to  the  Executive  the 
practicability  of  connecting,  by  the  canal  described  in  this  act,  the 
Chesapeake  and  Ohio  Canal,  with  the  Patapsco  River  at  the  city  of 
Baltimore;  and  if  the  said  Board  of  Public  Works  shall  adopt  for  the 
said  canal  a  line  wholly  within  the  State  of  Maryland,  then  the  act 
of  Congress  last  mentioned  in  the  foregoing  proviso,  shall  not  be  ne¬ 
cessary  to  authorize  the  subscriptions  and  expenditure  aforesaid:  And 
provided ,  also ,  That  the  Executive  shall  previously  be  satisfied  that 
the  residue  of  the  sum  of  money  estimated  by  the  United  States9 
Board  of  Engineers  to  be  adequate  to  the  completion  of  the  Eastern 
section  of  the  Chesapeake  and  Ohio  Canal,  after  deducting  the# 
amount  of  the  subscriptions  of  the  State  of  Maryland  and  of  the  Unit¬ 
ed  States,  herein  provided  to  be  made,  hath  been  actually  subscribed 
by  bona  fide  and  competent  subscribers. 

22.  And  be  it  enacted ,  That  if,  at  any  time  hereafter,  a  Company 
shall  be  formed  for  the  purpose  of  making  a  canal  from  the  city  of 
Baltimore  to  York  Haven,  on  the  river  Susquehannah,  of  the  dimen¬ 
sions  contemplated  in  the  report  of  the  Commissioners  to  survey  the 
practicability  and  probable  expense  of  a  canal  from  the  river  Susque¬ 
hannah  to  the  city  of  Baltimore,  the  faith  of  the  State  is  hereby  pledg¬ 
ed  to  grant  a  charter  to  such  Company,  with  all  and  singular  the 
rights,  privileges,  and  advantages,  as  are  granted  to  the  Company 
created  by  this  act,  to  extend  the  Canal  from  the  Potomac  to  the  city 
of  Baltimore,  called  the  Maryland  Canal;  and  the  faith  of  the  State 
is  also  hereby  pledged  to  subscribe  for  stock  in  said  Company  to  the 
amount  of  five  hundred  thousand  dollars:  Provided ,  That  such  sub¬ 
scription  shall  not  be  made  until  the  Executive  of  this  State,  for  the 
time  being,  shall  be  satisfied,  that,  with  the  amount  so  to  be  sub¬ 
scribed  on  the  part  of  the  State,  the  whole  sum  necessary  to  the  com¬ 
pletion  of  the  said  canal  hath  been  actually  subscribed  by  bona  fide 
and  competent  subscribers. 

23.  And  be  it  enacted ,  That  the  Treasurer  of  the  Western  Shore, 
under  the  direction  of  the  Executive,  shall  be,  and  he  is  hereby,  au¬ 
thorized  and  directed  to  negotiate  for,  and  raise  by  loan,  as  they  may 


57 


become  payable  for  canal  stock,  or  other  improvements  hereinbefore 
contemplated  under  the  provisions  of  this  act,  the  required  sum  or 
sums  of  money,  at  a  rate  of  interest  not  exceeding  five  per  centum 
per  annum,  payable  quarter  yearly;  the  whole  of  said  loans  to  be  re¬ 
deemable  at  the  pleasure  of  the  State,  at  any  time  after  the  first  day 
of  January,  in  the  year  of  our  Lord  eighteen  hundred  and  sixty. 

24.  And  be  it  enacted,  That  the  dividends  and  other  emoluments 
which  may,  from  time  to  time,  accrue  to  the  State  from  the  various 
investments  hereby  authorized,  and  from  the  road  stock  now  belong¬ 
ing  to  the  State,  shall  be,  and  the  same  are  hereby,  pledged  and  set 
apart  as  a  sinking  fund,  under  the  management  of  the  Board  of  Pub¬ 
lic  Works,  in  the  first  place  to  pay  and  discharge  the  public  debt  in¬ 
curred  by  the  subscriptions  hereinbefore  authorized. 


ACT  OF  THE  STATE  OF  MARYLAND. 

A  supplement  to  the  act ,  entitled  “  An  act  for  the  promotion  of  Internal 
Improvement 99 — [Passed  March  10,  1827.] 

Whereas,  by  the  act,  entitled  “  An  act  for  the  promotion  of  In¬ 
ternal  Improvement,  passed  at  December  session,  eighteen  hundred 
and  twenty-five,  it  is,  amongst  other  things,  provided,  that  a  part 
of  the  subscriptions  thereby  authorized  to  the  stock  of  the  Chesa¬ 
peake  and  Ohio  Canal  Company  shall  depend  upon  the  subscription, 
by  the  Congress  of  the  United  States,  of  not  less  than  ten  thousand 
shares  of  said  capital  stock  to  the  Eastern  section  of  the  said  Chesa¬ 
peake  and  Ohio  Canal:  And  whereas,  according  to  the  provisions  of 
the  charter  creating  said  company,  subscriptions  are  required  to  be 
made  without  a  reference  to  sections,  Eastern  or  Western: 

1.  Beit  enacted  by  the  General  Assembly  of  Maryland ,  That  said 
proviso,  in  said  act  contained,  be,  and  the  same  is  hereby,  repealed; 
and  that  the  Treasurer  of  the  Western  Shore  be,  and  he  is  hereby, 
authorized  and  required,  for  and  on  behalf  of  the  State,  to  make  the 
subscription  provided  for  by  the  act  aforesaid,  whenever  the  Congress 
of  the  United  States  shall  have  authorized  subscription  for  not  less 
than  ten  thousand  shares  of  the  capital  stock  of  the  Chesapeake  and 
Ohio  Canal  Company,  and  shall  have  complied  with  the  other  re¬ 
quirements  of  the  original  act  aforesaid,  to  which  this  is  a  supplement. 

2.  And  be  it  enacted ,  That  the  proviso  in  the  twenty-first  section  of 
said  original  act  contained,  requiring  that  the  Executive  shall,  pre¬ 
viously,  be  satisfied  that  the  residue  of  .the  sum  of  money  estimated  by 
the  United  States’  Board  of  Engineers  to  he  adequate  to  the  comple¬ 
tion  of  the  Eastern  section  of  the  Chesapeake  and  Ohio  Canal,  after 
deducting  the  amount  of  the  subscriptions  of  the  State  of  Maryland, 
and  of  the  United  States,  herein  provided  to  be  made,  hath  actually 
subscribed  by  bona  fide  and  competent  subscribers,  be,  and  the  same 
is  hereby,  repealed. 

6 


58 


3.  And  whereas,  by  the  act  to  which  this  is  a  supplement,  it  is  also 
declared  that  a  charter  would  be  granted  by  this  State  for  the  mak¬ 
ing  of  a  canal  from  the  river  Susquehannah  to  the  city  of  Baltimore, 
as  therein  mentioned,  and,  by  a  subsequent  act  of  the  last  session,  en¬ 
titled  “  An  act  to  incorporate  the  Susquehannah  and  Patapsco  Canal 
Company,”  authorizing  such  canal  to  commence  at  York  Haven,  it 
is  provided,  that  this  State  should  subscribe  for  stock  of  the  said  com¬ 
pany,  and  appropriate  the  sum  of  five  hundred  thousand  dollars  to 
the  making  said  canal;  and  it  having  been  thought  proper  to  autho- 
rize  the  commencement  of  a  similar  canal,  in  connexion  with  the 
Pennsylvania  canal,  at  or  near  Swetara  creek,  on  the  Susquehannah 
river,  and  to  be  made  as  provided  by  the  act  passed  at  the  present 
session,  entitled  “  An  act  to  incorporate  the  Pennsylvania  and  Mary¬ 
land  Canal  Company,”  and  to  transfer  to  the  same  the  appropriation 
aforesaid:  Therefore,  Be  it  enacted,  That,  so  soon  as  the  Governor 
and  Council  shall  be  satisfied  that  eight  thousand  shares  of  the  stock 
of  the  company  authorized  by  the  said  last  mentioned  act,  shall  have 
been  subscribed  by  bona  fide  and  competent  subscribers,  and  shall  cer¬ 
tify  the  same  to  the  Treasurer  ol*  the  Western  Shore,  then  the  said 
Treasurer  shall  be,  and  he  is  hereby,  authorized  and  required  to  sub¬ 
scribe,  on  behalf  of  this  State,  for  five  thousand  shares  of  the  stock 
of  the  said  Pennsylvania  and  Maryland  Canal  Company. 

4.  And  be  it  enacted ,  That  so  much  of  the  act  to  which  this  is  a 

supplement,  and  the  act  to  incorporate  the  Susquehannah  and  Pataps¬ 
co  Canal  Company,  as  shall  be  found  inconsistent  with  the  provisions 
of  the  act  passed  at  the  present  session,  entitled  “  An  act  to  incorpo¬ 
rate  the  Pennsylvania  and  Maryland  Canal  Company,”  he,  and  the 
same  are  hereby,  repealed.  .$$ 


ACT  OF  THE  STATE  OF  MARYLAND. 

A  further  supplement  to  the  act ,  entitled  “An  act  for  the  Promotion  of 
Internal  Improvement." — [Passed  December  Session ,  1827.] 

Whereas,  by  the  act,  entitled  “  A  supplement  to  the  act,  entitled  4  An 
act  for  the  promotion  of  Internal  Improvement,”  passed  at  Decem¬ 
ber  session,  eighteen  hundred  and  twenty-six,  chapter  two  hundred 
and  eleven,  it  is,  amongst  other  things,  provided  that  one  of  the 
conditions  upon  which  the  Treasurer  of  the  Western  Shore  shall 
be  authorized  to  subscribe  for  five  thousand  shares  in  the  capital 
stock  of  the  Chesapeake  and  Ohio  Canal  Company,  is,  that  when¬ 
ever  the  United  States  shall  have  authorized  subscriptions  for 
not  less  than  ten  thousand  shares  of  the  capital  stock  of  the  Chesa¬ 
peake  and  Ohio  Canal  Company;  and  whereas  it  is  important, 
with  reference  to  the  interest  of  the  State,  that  the  grant  already 
made  by  her,  to  that  company,  should  be  made  dependent  upon 
such  other  conditions  and  restrictions,  as  will  effectually  secure  the 


completion  of  this  work,  if  ever  commenced,  and  the  previous  pay¬ 
ment  of  the  instalments  upon  all  other  subscriptions;  and  that 
some  mode  of  payment  of  the  subscription  already  made,  should 
be  provided,  having  reference  to  the  exhausted  condition  of  the 
Treasury,  in  lieu  of  the  mode  of  payment  provided  by  the  terms 
of  the  original  subscription  :  Therefore, 

Sec.  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 
the  Treasurer  of  the  Western  Shore  be  authorized  to  subscribe  the 
aforementioned  five  thousand  shares  of  the  capital  stock  of  the  Che¬ 
sapeake  and  Ohio  Canal  Company,  whenever  the  commissioners, 
their  successors,  or  a  majority  of  them,  appointed  on  the  part  of  this 
State,  to  aid  in  opening  books,  and  taking  subscriptions  to  the  stock 
of  said  company,  shall  certify  that  the  sum  of  two  millions  five  hun¬ 
dred  thousand  dollars  has  been  subscribed  by  bona  fide  subscribers, 
with  such  additional  securities,  as  to  them  may  be  deemed  ample,  to 
ensure  the  faithful  compliance  on  the  part  of  the  subscribers  of  the 
aforesaid  two  millions  five  hundred  thousand  dollars  :  and  provided, 
also,  that  the  instalments  thereon,  similar  to  that  required  to  be  paid 
on  behalf  of  the  State,  and  all  the  previous  instalments,  which  may 
have  accrued  thereon,  shall  have  been  paid,  before  any  payment  shall 
be  demanded  on  account  of  the  State’s  subscription. 

Sec.  2.  And  be  it  enacted ,  That  the  said  subscription  is  authorized 
and  directed  upon  the  condition,  that  the  said  President  and  Direc¬ 
tors  of  the  said  Chesapeake  and  Ohio  Canal  Company  shall  certify  to 
the  said  Treasurer,  their  agreement,  under  the  corporate  seal  of  said 
company,  to  accept  arid  receive,  in  payment  of  the  instalments  which 
may  become  due  on  any  such  subscription,  as  they  may  be  called  for, 
certifieates  of  stock  of  the  State  of  Maryland,  at  par,  irredeemable 
for  fifteen  years,  and  bearing  an  interest  of  five  per  centum  per  annum, 
payable  quarterly,  to  commence  at  the  end  of  one  year  after  the  same 
shall  have  been  issued  in  succession ;  and  that,  upon  any  such  sub¬ 
scription  being  made,  the  said  Treasurer  is  further  authorized  and 
directed  to  borrow,  on  the  credit  of  the  State,  on  the  best  obtainable 
terms,  from  time  to  time,  the  funds  necessary  to  meet  and  discharge 
the  first  advance,  and  each  successive  payment,  whensoever  and  as 
often  as  any  instalment  on  the  said  subscription  of  the  State  shall  be 
demanded,  and  become  due,  in  conformity  to  the  provisions  of  the 
charter  of  the  said  company ;  and  to  issue  for  the  same,  certificates 
of  stock  of  the  State,  bearing  interest  at  the  rate  of  five  per  centum 
per  annum,  payable  quarterly;  provided,  that  the  said  stock  shall  be 
redeemable  at  the  pleasure  of  the  State,  at  any  time  after  fifty  years 
from  each  successive  issue  of  certificates  as  aforesaid;  and  the  pre¬ 
mium,  if  any,  on  each  and  every  of  the  said  loans,  shall  he  invested 
in  some  safe  and  productive  stock,  at  the  discretion  of  the  said  Trea¬ 
surer,  with  the  advice  and  consent  of  the  Governor  and  Council,  for 
the  time  being;  and  the  interests,  dividends,  or  profits,  arising  from 
such  investment  or  investments,  shall  he  re-invested  as  aforesaid,  for 
the  eventual  redemption  of  the  said  loans  :  and  the  said  funds,  when 
obtained  under  the  authority  of  this  act,  the  said  Treasurer  is  hereby 


60 


directed  to  pay  to  the  ol  der  of  the  President  and  Directors  of  the 
Chesapeake  and  Ohio  Canal  Company,  in  conformity  to  the  provi- 
sions  of  the  charter  of  the  said  company,  and  to  receive  therefor  the 
necessary  acquittances;  or,  in  case  it  shall  be  deemed  more  beneficial 
to  the  interest  of  the  State,  in  the  estimation  of  the  said  Treasurer, 
with  the  approbation  and  concurrence  of  the  Governor  and  Council, 
the  said  Treasurer  shall  be,  and  he  hereby  is,  authorized  and  direct¬ 
ed,  whensoever  and  as  often  as  any  instalment  on  the  said  subscrip¬ 
tion  of  the  State  shall  be  demanded,  and  become  due,  in  conformity 
to  the  provisions  of  the  said  charter,  to  issue  certificates  of  stock  of 
the  State,  at  par,  irredeemable  for  fifteen  years,  bearing  interest  at 
the  rate  of  five  per  centum  per  annum ;  the  said  interest  upon  such 
certificates  to  commence  at  the  end  of  one  year  after  the  same  shall 
have  been  issued,  in  succession,  and  to  be  paid  quarterly  thereafter ; 
and  the  said  Treasurer  is  authorized  and  directed  to  cause  the  said 
certificates  to  be  delivered  to  the  person  or  persons  authorized  to  re¬ 
ceive  the  said  instalments,  as  they  shall  severally  bqcome  due,  and  to 
demand  and  receive,*  from  such  person  or  persons,  upon  the  delivery 
of  the  said  certificates,  a  full  acquittance  and  discharge  for  and  on 
behalf  of  the  State,  for  the  instalment  for  which  the  said  certificates 
were  issued  :  provided,  always,  that,  in  case  a  premium  of  five  per 
centum,  or  exceeding  five  per  centum,  may  he  obtained  upon  any  loan 
required  for  any  instalment  as  aforesaid,  that  then,  and  in  that  case* 
it  shall  be  the  duty  of  the  said  Treasurer,  with  the  advice  and  con¬ 
sent  of  the  Governor  and  Council,  as  aforesaid,  to  elect  the  first 
alternative,  as  hereinbefore  provided  :  Jlnd  provided  furthermore ,  and 
it  is  hereby  enacted ,  That,  upon  the  adoption  of  either  alternative,  a 
capital  equal  to  ten  per  centum,  at  the  least,  on  the  gross  amount  of 
each  loan,  shall  be  made  from  any  unappropriated  money  in  the  Trea¬ 
sury,  and  the  same  shall  be  invested  in  some  safe  and  productive 
stock,  as  aforesaid;  and  the  interest,  dividends,  or  profits,  arising 
therefrom,  shall  be  invested,  as  aforesaid,  for  the  eventual  redemp¬ 
tion  of  each  of  the  said  loans,  to  be  negotiated  as  aforesaid. 

Sec.  3.  Jlnd  be  it  enacted ,  That  any  act  or  acts,  repugnant  to,  or 
inconsistent  herewith,  be,  and  the  same  are  hereby,  repealed. 


Jit  a  General  Meeting  of  the  Stockholders  of  the  Chesapeake  and  Ohio 
Canal  Company f /widen  by  adjournment,  on  Monday ,  25 dJune,  1828, 
it  was 

Resolved,  That  the  Chesapeake  and  Ohio  Cana!  Company  do  ac¬ 
cept,  ratify,  and  confirm  the  subscription,  by  the  State  of  Maryland, 
of  half  a  million  of  dollars  to  the  stock  of  the  company,  according  to 
the  terms  of  the  several  acts  of  the  State  of  Maryland  relating  there¬ 
to,  and  especially  the  act  of  the  said  State,  entitled  “  An  act  supple¬ 
mental  to  an  act,  entitled  ‘An  act  for  the  promotion  of  internal  improve¬ 
ment,5  55  which  passed  at  the  December  session  of  the  Legislature  of 


that  State,  of  1827  ;  and  that  the  President  and  Directors  of  the 
company  he  authorized  and  instructed  to  signify  this  acceptance  and 
ratification,  in  the  mode  prescribed  by  the  said  act  or  acts,  as  soon  as 
practicable. 


ACT  OF  THE  STATE  OF  MARYLAND. 

An  act  to  amend  the  “Act  incorporating  the  Chesapeake  arid  Ohio  Canal 
Company — [Passed  December  Session ,  1826.J 

Sec.  1 .  Be  it  enacted  by  the  General  Assembly  of  Maryland ,  That 
the  act,  entitled  “  An  act  incorporating  the  Chesapeake  and  Ohio 
Canal  Company, ”  passed  by  the  General  Assembly  of  Virginia,  at 
the  December  session,  eighteen  hundred  and  twenty -three,  which  has 
already  received  the  assent  of  the  State  of  Maryland,  and  of  the  Con¬ 
gress  of  the  United  States,  as  well  as  of  the  Potomac  Company,  shall 
be,  and  the  same  is  hereby,  amended,  in  the  manner  hereinafter  pro¬ 
vided,  on  condition  that  this  act  receive,  in  like  manner,  the  assent 
of  the  necessary  parties  thereto. 

Sec.  2.  And  be  it  further  enacted ,  That  the  Chesapeake  and  Ohio 
Canal  Company  shall  have  power  to  terminate  the  eastern  section 
of  the  said  canal,  at  or  near  the  town  of  Cumberland,  on  the  river 
Potomac,  and  thence,  to  extend  the  western  section  thereof,  in  any 
direction  that  may  be  deemed  expedient,  by  any  other  route,  as  well 
as  that  prescribed  in  the  act  aforesaid,  towards  Pittsburg,  on  the  river 
Ohio;  and,  in  extending  the  same  in  any  direction  across  the  divid¬ 
ing  ridge  which  separates  the  eastern  and  western  waters,  to  sub¬ 
stitute,  for  a  tunnel  and  numerous  locks  on  such  part  of  the  route, 
inclined  planes  and  railways,  or  any  other  artificial  communication  or 
roads;  and,  in  die  event  that  the  western  section  of  the  Chesapeake 
and  Ohio  Canal  shall  leave  the  valley  of  the  Potomac  river  at  any 
point  below  the  Coal  Banks,  at  or  near  the  mouth  of  Savage,  on  the 
North  Branch  thereof,  the  company  shall  have  the  power,  in  like 
manner,  to  extend  a  branch  from  the  main  canal,  to  the  said  Coal 
Bauks,  at  or  above  the  mouth  of  Savage,  and  to  cause  such  branch 
to  be  constructed,  of  such  ditnesions  as  their  views  of  their  own  and 
the  public  interest  may  warrant;  and,  for  the  construction  of  the 
same,  shall  have  and  epjoy  the  same  rights,  privileges,  and  immuni¬ 
ties,  under  the  same  restraints  and  conditions,  in  all  respects,  as  they 
are  entitled  to  in  relation  to  the  main  Chesapeake  and  Ohio  Canal. 

Sec.  3.  And  be  it  further  enacted ,  That  nothing  in  this  act  contain¬ 
ed  shall  be  held  to  discharge  the  said  Company  from  a  compliance 
with  eacli  and  every  of  the  conditions  of  the  original  act,  except  so 
far  as  the  same  arc  expressly  altered  by  the  provisions  of  this  act. 

Sec.  4.  And  be  it  further  enacted,  That  this  act  shall  commence 
and  be  in  force  as  soon  as  it  shall  have  received  the  assent  of  the  Le¬ 
gislature  of  Virginia,  of  the  Congress  of  the  United  States,  and  of 
the  Potomac  Company. 


62 


ACT  OF.  THE  STATE  OF  VIRGINIA. 

An  act  giving  the  assent  of  this  State  to  an  act  to  amend  the  act  incor¬ 
porating  the  Chesapeake  and  Ohio  Canal  Company ,  as  passed  by  the 
State  of  Maryland . — [ Passed  February  26th,  1627.] 

Whereas  it  is  represented  that  the  General  Assembly  of  the  Com¬ 
monwealth  of  Maryland  hath  passed,  at  their  present  session, 
an  act,  entitled  “  An  act  to  amend  the  act  incorporating  the  Chesa¬ 
peake  and  Ohio  Canal  Company,”  in  the  words  following,  to  wit : 
[See  preceding  act.] 

1.  Be  it  therefore  enacted  by  the  General  Assembly  of  this  Com¬ 
monwealth ,  That  the  assent  of  this  Legislature,  in  and  to  the  amend¬ 
ment  to  “  the  act  incorporating  the  Chesapeake  and  Ohio  Canal,”  as 
contained  in  the  foregoing  act  of  the  General  Assembly  of  Maryland, 
is  hereby  as  fully  and  completely  given,  as  if  the  said  amendatory 
act  had  been  passed  by  this  present  General  Assembly. 

2.  This  act  shall  be  in  force  from  the  passing  thereof. 


ACT  OF  THE  STATE  OE  MARYLAND. 

An  act  further  to  amend  the  act  incorporating  the  Chesapeake  and  Ohio 
Canal  Company. — [ Passed  December  Session ,  \627.] 

Whereas  it  is  represented  to  this  General  Assembly,  that  it  may  tend 
greatly  to  the  promotion  of  the  object  of  the  original  act  incorpo¬ 
rating  the  Chesapeake  and  Ohio  Canal  Company,  to  authorize  a 
subscription  for  its  stockjby  aliens  ;  and  doubts  have  arisen  wheth¬ 
er,  under  said  act,  such  stock  may  he  held  by  otheys  than  citizens 
or  the  United  States,  and  whether  Ahe  stock  of  said  Company  is 
to  be  regarded  as  real  or  personal  property  : 

1.  Beit  enacted  by  the  General  Assembly  of  Maryland ,  That  it  shall 
and  may  be  lawful  for  the  Commissioners,  for  the  time  being,  and  for 
the  President  and  Directors  of  the  said  Company,  whensoever  the  same 
shall  be  duly  organized,  agreeably  to  the  provisions  of  the  original 
act  aforesaid,  to  receive  subscriptions  for  any  number  of  shares  of  the 
capital  stosk  of  said  Company,  from  any  alien  or  aliens,  w  ho  are 
hereby  declared  competent  to  hold  the  same  ;  and,  if,  in  their 
judgment,  it  be  necessary,  to  appoint  an  agent,  or  agents,  to  visit 
Europe  for  that  purpose. 

2.  And  be  it  enacted ,  That  the  shares  of  the  capital  stock  of  said 
Chesapeake  and  Ohio  Canal  Company  shall  be  deemed  and  taken  to 
be  personal  estate,  and,  as  such,  to  be  liable  to  be  assigned  and  trans¬ 
ferred  :  Provided ,  That  it  shall  not  be  lawful  for  any  stockholder  in 
said  Company  to  assign  any  share  or  shares,  by  him  or  her  held,  un¬ 
less  it  be  in  person,  or  by  attorney,  upon  the  books  of  said  Company  : 
And  provided  also,  That  no  transfer  or  assignment  shall  be  made, 


63 


except  from  one  or  more  whole  share  or  shares,  and  not  for  any 
part  of  such  share  or  shares  ;  and  that  no  share  or  shares  shall,  at 
any  time,  be  assigned  or  transferred,  or  held  in  trust  for  the  use 
and  benefit,  or  in  the  name  of  another,  whereby  the  said  President 
and  Directors,  or  Stockholders,  of  the  said  Company,  or  any  of  them, 
shall  or  may  be  challenged,  or  made  to  answer  concerning  any  such 
trust ;  but  that  every  person  appearing,  as  aforesaid,  to  be  a  Stock¬ 
holder,  shall,  as  to  others  of  the  said  Company,  be,  to  every  intent, 
taken  absolutely  as  such  ;  but,  as  between  any  trustee  and  the  person 
for  whose  benefit  any  trust  shall  be  created,  the  common  remedy  may 
be  pursued. 

3.  And  be  it  enacted ,  That  this  act  shall  commence  and  be  in  force 
as  soon  as  it  shall  have  received  the  assent  of  the  Legislature  of 
Virginia,  of  the  Congress  of  the  United  States,  of  the  Potomac  Com¬ 
pany,  and  of  the  Stockholders  of  said  Chesapeake  and  Ohio  Canal 
Company,  to  be  given  at  their  first  general  meeting  after  the  passage 
of  this  act. 


At  a  General  Meeting  of  the  Stockholders  of  the  Chesapeake  and  Ohio 
Canal  Company,  holdedby  adjournment,  on  Thursday ,  3d  July ,  1828, 
it  was 

Resolved ,  That  the  act  of  the  General  Assembly  of  Maryland, 
entitled,  “  An  act  further  to  amend  the  act  incorporating  the  Chesa¬ 
peake  and  Ohio  Canal  Company, ”  passed  December  session,  1827, 
be,  and  the  same  is  hereby, 'assented  to  by  this  Company  •  and  that  the 
said  act  of  Assembly  be,  and  the  same  is  hereby  accepted  and  adopted 
by  this  Company,  as  a  part  of  their  charter,  so  far  as  the  same  re¬ 
lates  to,  or  concerns,  this  Company,  and  the  same  is  hereby  acknow¬ 
ledged  to  be  obligatory  on  this  Company. 


ACT  OF  THE  STATE  OF  VIRGINIA. 

An  act  giving  the  assent  of  this  State  to  an  act  further  to  amend  the 
act  incorporating  the  Chesapeake  and  Ohio  Canal  Company ,  passed 
by  the  Slate  of  Maryland. — [ Passed  Feb.  26,  1828.] 

Whereas  it  is  represented  that  the  General  Assembly  of  the  Com¬ 
monwealth  of  Maryland  hath  passed,  at  their  present  session,  an  act, 
entitled  “  An  act  further  to  amend  the  act  incorporating  the  Chesa¬ 
peake  and  Ohio  Canal  Company,”  in  the  words  following  to  wit : 

[See  preceding  act.] 

1.  Be  it  therefore  enacted  by  the  General  Assembly  of  this  Common¬ 
wealth,  That  the  assent  of  this  Legislature  in  and  to  the  amendments 
to  the  “  Act  incorporating  the  Chesapeake  and  Ohio  Canal  Compa- 


64 


ny,”  as  contained  in  the  foregoing  act  of  the  General  Assembly  of 
Maryland,  is  hereby  as  fully  and  completely  given,  as  if  the  said 
amendatory  act  had  been  passed  by  this  present  General  Assembly. 
2.  This  act  shall  be  in  force  from  the  passing  thereof. 


ACT  OF  THE  STATE  OF  PENNSYLVANIA. 

An  act  incorporating  the  Chesapeake  and  Ohio  Canal  Company.  [ Passed 
9th  February ,  1 826. 

Section  1.  Beit  enacted  by  the  Senate  and  House  of  Representatives 
of  the  Commonwealth  of  Pennsylvania  in  General  Assembly  met ,  and  it 
is  hereby  enacted  by  the  authority  of  the  samey  That  the  full  and  entire 
assent  of  this  Commonwealth  he,  and  the  same  is  hereby,  given  to  all 
and  each  of  the  provisions  mentioned  and  contained  in  an  act  of  the 
Legislature  of  the  State  of  Virginia,  passed  the  twenty-seventh  day 
of  January,  one  thousand  eight  hundred  and  twenty-four,  entitled 
u  An  act  incorporating  the  Chesapeake  and  Ohio  Canal  Company,” 
so  far  as  the  same  are  or  may  be  applicable  to  this  Commonwealth  ; 
and  the  said  act  of  the  State  of  Virginia  is  hereby  adopted,  ratified, 
and  confirmed,  and  enacted  into  a  law  of  this  Commonwealth,  and  all 
and  each  of  the  provisions,  conditions,  and  restrictions  thereof,  as  ful¬ 
ly  and  effectually,  as  if  the  same  were  enacted,  paragraph  by  para¬ 
graph,  and  section  by  section,  so  far  as  the  same  can  apply  to  this 
Commonwealth  ;  always,  neverthelesss,  subject  to  the  exceptions,  pro¬ 
visions,  and  restrictions,  hereinafter  mentioned  ;  and  the  said  act  shall 
hereafter  be  in  full  force  and  effect,  wherever  the  same  is  applicable, 
as  well  within  as  without  this  Commonwealth,  as  an  act  incorporating 
the  Chesapeake  and  Ohio  Canal  Company,  for  all  and  every  of  the 
objects  and  purposes  therein  set  forth  and  provided  for,  according  to 
the  true  intent  and  meaning  of  the  Said  act  of  the  State  of  Virgina  ; 
an  exemplification  whereof  shall  be  annexed  to  this  act,  and  be  pub¬ 
lished  in  the  same  manner  as  the  laws  are  usually  published  :  and  the 
Governor  shall  likewise  cause  an  exemplified  copy  of  the  said  act  of 
Virginia  to  be  deposited  in  the  Secretary’s  office  of  this  Common¬ 
wealth,  and  shall  also  transmit  an  attested  copy  of  this  act  to  the 
President  of  the  United  States,  and  one  copy  thereof  to  the  Governor 
of  Virginia,  and  one  copy  thereof  to  the  Governor  of  Maryland. 

Sec.  2.  And  be  it  further  enacted  by  the  authority  aforesaid ,  That 
this  act  shall  have  no  effect,  unless,  within  three  years  from  and  after 
the  passage  hereof,  the  State  of  Maryland  shall  pass  a  law  authori¬ 
zing  the  State  of  Pennsylvania,  or  any  company  which  may  he  for 
that  purpose  incorporated  by  the  State  of  Pennsylvania,  to  take  and 
continue  a  lateral  canal  or  canals,  or  railway,  from  any  point  or 
points  within  the  territory  of  Pennsylvania,  to,  and  connect  with,  the 
Chesapeake  and  Ohio  canal,  within  the  territory  of  the  said  State  of 
Maryland,  and  upon  the  same  terms  and  conditions,  and  with  all  the 
rights,  privileges,  and  powers,  of  every  kind  whatsoever, ,  that  the 


Chesapeake  and*  Ohio  Canal  Company  may  have  to  make  the  said 
Chesapeake  and  Ohio  Canal,  and  uidess  the  said  Chesapeake  and 
Ohio  Canal  Company  shall  assent  to  and  accept  the  said  law  of  the 
State  of  Maryland,  within  one  year  after  it  shall  have  been  enacted  : 
Provided ,  That,  should  the  said  Chesapeake  and  Ohio  Canal  be 
located  on  the  south  side  of  the  Potomac,  at  any  point  or  points 
below  the  town  of  Hancock,  then  the  assent  of  Virginia,  and  the  said 
Chesapeake  and  Ohio  Canal  Company  shall  also  be  obtained  in  like 
manner,  before  this  act  goes  into  operation,  except  so  far  as  it  re- 
quires  the  assent  of  Maryland  to  the  right  to  make  a  railway  through 
the  territory  of  that  State. 

Sec.  3.  And  be  it  further  enacted  by  the  authority  aforesaid ,  That, 
as  a  condition  on  which  this  act  shall  pass,  no  greater  tolls  shall  be 
charged  or  paitl  on  goods,  commodities,  and  produce,  entering  and 
transported  on  the  said  Chesapeake  and  Ohio  Canal,  from  such  lateral 
canals,  than  are  charged  and  paid  on  other  goods,  commodities,  and 
produce,  of  the  same  kind,  transported  on  the  said  Chesapeake  and 
Ohio  Canal:  And  provided,  further.  That  the  aforesaid  Chesapeake  and 
Ohio  Canal  Company  shall  extend  the  Chesapeake  and  Ohio  Canal 
to,  and  terminate  the  same  at,  the  city  of  Pittsburg. 

Sec.  4.  And  be  it  further  enacted  by  the  authority  aforesaid ,  That 
the  said  Chesapeake  and  Ohio  Canal  Company  shall  have  full  power 
and  authority  to  alter  and  change  the  route  of  the  westerly  section  of 
the  said  canal,  so  that  the  same  may  commence  at  the  town  of  Cum¬ 
berland,  situated  near  the  junction  of  Wills’  creek,  with  the  north 
branch  of  the  Potomac,  and  he  continued  from  thence,  by  the  valley 
of  Wills’  creek  and  Castleman’s  river,  to  the  Youghiogeny.  and  from 
thence  to  the  city  of  Pittsburg  :  Provided ,  That  the  United  States’ 
Board  of  Internal  Improvement,  oi*  a  majority  thereof,  should  deem 
and  report  that  route  to  be  the  best. 

Sec.  5.  And  be  it  further  enacted  by  the  authority  aforesaid ,  That, 
should  the  United  States  of  America  subscribe  to  the  stock  of  the 
said  Chesapeake  aid  Ohio  Canal  Company,  the  said  Company  shall, 
within  six  months  after  receiving  the  sum  subscribed,  commence  the 
western  section  of  said  canal,  at  such  point  or  points  as  may  be  deem¬ 
ed  most  advantageous  to  the  interests  of  the  said  Company  :  and  it 
shall  be  their  duty  to  apportion  at  least  one  half  of  the  subscription 
of  the  United  States  to  the  western  section  of  the  said  canal.  And 
whatever  amount  of  stock  may  be  subscribed  by  the  citizens  of  Penn¬ 
sylvania,  shall  be  expended  wholly  on  the  western  section,  unless  au¬ 
thority  is  given  to  the  said  company,  by  the  Pennsylvania  subscribers, 
to  expend  their  subscriptions  differently  :  and  in  case  of  failure  of  the 
said  company  to  comply  with  the  provisions  herein  set  forth,  this  act 
shall  ce.ase  to  have  any  force  or  effect  whatever. 

Sec.  6.  And  be  it  further  enacted  by  the  authority  aforesaid ,  That, 
if  the  nett  annual  dividend  of  said  company  shall,  for  any  two  years 
in  succession,  exceed  the  amount  of  fifteen  per  cent,  such  excess  shall 
be  equally  applied,  by  the  President  and  directors,  to  the  accommoda- 
tipn  of  the  inhabitants  of  the  shores  of  the  Youghiogeny  and  Monon- 
gahela  rivers,  and  the  country  drained  by  the  tributary  streams  there- 


66 


of,  now  navigable,  or  which  may  hereafter  become  so,  in  the  same 
manner,  in*  proportion  to  the  distance,  as  is  directed  for  the  accommo¬ 
dation  of  the  inhabitants  of  the  shores  tif  the  Potomac  and  its  tributary 
streams,  by  the  eleventh  section  of  an  act  of  the  State  of  Virginia, 
entitled  6(  An  act  incorporating  the  Ohio  and  Chesapeake  Canal  Com- 
pany,”  passed  the  twenty -seventh  day  of  January,  one  thousand  eight 
hundred  and  twenty-four. 

Sec.  7.  And  be  it  further  enacted  by  the  authority  aforesaid ,  That 
it  shall  and  may  be  lawful  for  the  said  Chesapeake  and  Ohio  Canal 
Company,  at  any  place  within  this  Commonwealth,  on  the  route  of 
the  said  canal,  to  sell  or  lease  the  use  of  the  water  contained  therein, 
or  in  any  embankment,  dike,  pond,  or  other  improvement  connected 
therewith,  to  any  individual  or  individuals,  or  private  company  or 
companies,  for  that  purpose  incorporated  by  the  State#of  Pennsylva¬ 
nia,  for  mills,  or  any  other  water  works,  or  for  irrigating  any  lands, 
or  for  supplying  bleach  grounds,  tan-pits,  or  brick-yards,  and  the 
profits  or  rents  resulting  therefrom  to  take  and  receive,  to  and  for  the 
use  and  benefit  of  the  said  corporation,  in  addition  to  the  tolls  and 
profits  allowed  to  be  taken  by  the  act  of  Virginia  :  Provided ,  That  the 
navigation  of  the  said  canal  be  not  thereby  impeded  or  obstructed  : 
And  provided  further ,  That  the*  said  Chesapeake  and  Ohio  Canal 
Company  shall  not,  at  any  time,  be,  directly  or  indirectly,  engaged 
or  concerned  in  any  banking,  merchandising,  milling,  or  the  erecting 
of  mills,  manufacturing,  or  mining,  or  in  any  other  business  whatso¬ 
ever,  except  such  as  may  be  necessary  and  proper  for  the  construction 
of  such  canal,  and  appurtenances,  and  the  performance  of  the  several 
functions  of  a  canal  company. 

Sec.  8.  And  be  it  further  enacted  by  the  authority  aforesaid9  That, 
as  a  further  condition  on  which  the  assent  of  this  State  is  given  to  the 
Virginia  act,  aforesaid,  that  so  far  as  regards  the  territory  of  Penn¬ 
sylvania,  whenever  the  said  canal  shall  cross  any  public  or  private 
laid  out  road  or  highway,  or  shall  divide  the  ground  of  any  person  or 
persons,  so  as  to  require  a  ford  or  bridge  to  cross  4he  same,  the  jury, 
who  shall  inquire  of  the  damages  to  be  sustained,  in  manner  directed 
by  the  fifteenth  section  of  the  Virginia  act,  shall  find  and  ascertain 
whether  a  passage  across  the  same  shall  be  admitted  or  maintained  by 
a  ford  or  bridge  ;  and,  on  such  finding,  the  said  Chesapeake  and  Ohio 
Canal  Company  shall  cause  a  ford  to  be  rendered  practicable,  or  a 
bridge  fit  for  the  passage  of  carts  and  waggons  to  be  built,  and  for¬ 
ever  hereafter  maintained  and  kept  in  repair,  at  all  and  every  places 
so  ascertained  by  the  said  jury,  at  the  cost  and  charges  of  the  said 
company;  hut  nothing  herein  contained  shall  prevent  any  person 
from  erecting  and  keeping  in  repair,  any  foot  or  other  bridge  across 
the  said  canal,  at  his  own  expense,  when  the  same  shall  pass  through 
his  ground  ;  Provided,  The  same  shall  he  of  such  height  above  the 
water,  as  shall  be  usual  in  the  bridges  erected  by  the  company  ;  And 
provided ,  also ,  That  such  foot  or  other  bridges,  so  to  be  erected  by  the 
owners  of  such  lands,  shall  not  interfere  with  any  of  the  locks,  build¬ 
ings,  or  other  works  of  the  company,  or  with  the  navigation  of  the 
said  canal. 


67 


Sec.  9.  And  be  it  further  enacted  by  the  authority  aforesaid ,  That 
the  assent  of  the  Legislature  of  this  Commonwealth  to  the  said  act  of 
the  Legislature  of  Virginia,  is  given  and  granted  upon  the  further 
express  conditions,  that  any  mesne  process  which  may  be  issued 
against  the  said  company,  may  be  served  on  any  toll  gatherer,  direc¬ 
tor,  or  other  officer  of  the  company;  and  such  service  shall  be  held 
good,  valid,  and  effectual,  as  a  service  of  such  process  upon  the  said 
Chesapeake  and  Ohio  Canal  Company  ;  and  that  said  company  shall  . 
annually  report  to  the  Legislature  of  Pennsylvania  the  progress  they 
may  make  in  constructing  the  said  canal :  and  also  an  annual  abstract 
of  their  accounts,  certified  by  the  oath  of  the  President  of  the  said 
company,  shewing  the  amount  of  capital  stock  actually  paid  in,  and 
the  sums  deposited  with  the  Treasurer  for  contingent  and  current  ex¬ 
penses,  and  the  profits  which  may  have  accrued,  and  the  dividends 
made  or  declared  during  the  preceding  year. 


At  a  General  Meeting  of  the  Stockholders  of  the  Chesapeake  and  Ohio 
Canal  Company ,  / widen  by  adjournment ,  on  Saturday ,  2i  st  June, 
1828,  it  was 

Resolved ♦  That,  whenever  the  Western  section  of  the  Chesapeake 
and  Ohio  Canal  shall  be  constructed,  the  Western  termination  thereof 
shall  be  at  Pittsburg. 


At  a  Meeting  of  the  President  and  Directors  of  the  Chesapeake  and  Ohio 
Canal  Company ,  liolden  2 6th  June ,  1828,  it  was 

Resolved  unanimously ,  That  the  route  and  site  surveyed  by  the 
United  States’  Engineers,  and  by  Messrs  Gcddes  and  Roberts,  and 
communicated  to  Congress  by  the  Executive  of  the  United  States,  at 
various  times,  so  far  as  the  same  correspond  and  agree,  be  adopted  as 
the  line  of  the  Chesapeake  and  Ohio  Canal,  below  Cumberland,  on 
the  river  Potomac,  with  such  inconsiderable  variations  therefrom  as 
it  may  be  found  expedient  for  the  President  and  Directors  to  adopt, 
with  the  advice  of  their  Chief  Engineer,  in  placing  the  same  under 
contract,  and  in  the  execution  of  the  contracts  for  completing  the 
Canal. 


Extract  from  an  act  of  the  State  of  Maryland ,  passed  at  December  ses¬ 
sion,  1825,  entitled  “  An  act  to  incorporate  the  Susquehannah  and  Pa - 
tapsco  Canal  Company.19 — [Passed  8th  March,  1826.]  • 

“  Section'  1 1.  And  be  it  enacted ,  That  the  State  of  Pennsylvania, 
or  any  company  which  may  be  for  that  purpose  incorporated  by  the 
said  State,  shall  be,  and  is  hereby,  authorized  and  empowered  to 


68 


take  and  continue  a  lateral  canal  or  canals,  or  a  rail-way,  from  any 
point  or  points  within  the  territory  of  said  State,  to  connect  with  the 
Chesapeake  and  Ohio  Canal,  within  the  territory  of  this  State,  upon 
the  same  terms  and  conditions,  and  with  all  the  rights,  privileges, 
and  powers,  of  every  kind  whatsoever,  that  have  been  granted  to  the 
Chesapeake  and  Ohio  Canal  Company  :  Provided ,  That  the  State  of 
Pennsylvania  shall,  within  three  years  from  and  after  the  passage  of 
this  act,  assent  to,  and  confirm  this  charter,  so  that  the  same  may 
have  full  effect  and  operation  within  the  limits  of  that  State.” 


.  ACT  OF  THE  STATE  OF  PENNSYLVANIA, 

Giving  the  assent  of  this  State  to  an  act  of  the  General  Assembly  of 

Maryland,  entitled  “  An  act  to  incorporate  the  Susqnehannah  and 

Patapsco  Canal  Company.” — [Passed  7th  April,  1826.] 

Sect.  1.  Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  Commonwealth  of  Pennsylvania ,  in  General  Assembly  met ,  and 
it  is  hereby  enacted  by  the  authority  of  the  same ,  That  the  full  and  en¬ 
tire  assent  of  this  Commonwealth  be,  and  the  same  is  hereby,  given 
to  all  and  each  of  the  provisions  mentioned  and  contained  in  an  act  of 
the  General  Assembly  of  Maryland,  passed  the  eighth  of  March,  one 
thousand  eight  hundred  and  twenty-six,  entitled  An  act  to  incor¬ 
porate  the  Susquehannah  and  Patapsco  Canal  Company,”  so  far  as 
the  same  may  be  applicable  to  this  Commonwealth  ;  and  the  said  act 
of  the  General  Assembly  of  Maryland  is  hereby  ratified,  adopted,  and 
•confirmed,  and  enacted  into  a  law  of  this  Commonwealth,  and  all  and 
each  of  the  provisions,  conditions,  and  restrictions  thereof,  as  fully 
and  effectually  as  if  the  same  were  enacted  paragraph  by  paragraph, 
and  section  by  section,  so  far  as  the  same  can  apply  to  this  Common¬ 
wealth  ;  and  the  said  act  shall  hereafter  be  in  full  force  and  effect 
wherever  the  same  is  applicable,  as  well  within  as  without  this  Com¬ 
monwealth,  as  an  act  incorporating  the  Susquehannah  and  Patapsco 
Canal  Company,  for  all  and  every  of  the  objects  and  purposes  there¬ 
in  set  forth  and  provided  for,  according  to  the  true  intent  and  mean¬ 
ing  of  the  said  act  of  the  General  Assembly  of  Maryland  ;  an  exem¬ 
plification  whereof  shall  be  annexed  to  this  act,  and  be  published  in 
the  same  manner  as  the  laws  usually  are  published  ;  and  the  Gover¬ 
nor  shall  likewise  cause  an  exemplified  copy  of  the  said  act  of  the 
General. Assembly  of  Maryland,  to  be  deposited  in  the  Secretary’s 
office  of  this  Commonwealth,  and  shall  also  transmit  an  attested  copy 
of  this  act  to  the  Governor  of  the  State  of  Maryland.  Provided , 
That,  Jf  the  State  of  Maryland  shall,  when  hereafter  requested  by  the 
•State  of  Pennsylvania,  withhold  her  consent  to  the  said  State,  or  any 
company  incorporated  by  the  Legislature  thereof,  to  make  a  canal  or 
rail- way  from  the  Susquehannah  through  the  territory  of  Maryland, 
by  the  route  of  the  Cumberland  Valley  to  the  Potomac,  then  the  Le¬ 
gislature  of  Pennsylvania  reserves  the  power  to  repeal  this  act. 


69 


Sec.  2.  And  be  it  further  enacted  by  the  authority  aforesaid ,  That 
nothing  in  this  act  contained  shall  be  so  construed  as  to  authorize  the 
said  ••The  Susquehannah  and  Patapsco  Canal  Company”  to  erect 
or  place  any  dam  or  dams,  or  other  device,  or  works,  in  the  river 
Susquehannah,  in  a  way  to  injure  the  navigation  of  said  river;  and 
should  the  said  company  at  any  time  hereafter  erect  or  place  any  such 
dam,  device,  or  other  works,  in  the  said  river,  the  Legislature  of 
Pennsylvania  hereby  reserves  the  right  to  repeal,  at  any  time  there¬ 
after,  this  act,  and  to  resume  the  privileges  hereby  granted. 

Sec.  3.  And  be  it  further  enacted  by  the  authority  aforesaid ,  That 
the  said  Susquehannah  and  Patapsco  Canal  Company  are  hereby  re¬ 
quired  to  connect  with  the  river  Susquehannah  the  canal  hereby  au¬ 
thorized  to  be  made,  by  navigable  lateral  canals  and  locks,  of  the 
same  dimensions  as  the  main  canal,  at  the  most  eligible  point  for  fa¬ 
cilitating  the  passage  of  boats  and  other  craft  from  the  Susquehannah 
and  Patapsco  Canal  into  the  Susquehannah  river,  between  the  head 
of  the  tide  and  Havre  de  Grace,  and  at  some  point  opposite  or  near 
to  the  mouth  of  the  Conestoga,  and  also  at  or  near  the  town  of  Co¬ 
lumbia  :  and  no  greater  rate  of  tolls  per  mile  shall  be  charged  on  any 
boat,  ark,  craft,  or  other  vessel,  navigating  said  canal  from  York 
Haven,  or  on  any  other  point  on  said  canal  above  tide,  to  any  point 
out  of  the  said  canal  into  the  Susquehannah  river  or  Chesapeake  Bay, 
than  shall  be  charged  on  the  same  description  of  vessels  navigating 
the  said  canal  from  York  Haven  to  the  Patapsco,  and  the  ascending  m  ■ 
navigation  shall  be  subject  to  the  same  regulations  ;  and  if  the  said 
“  The  Susquehannah  and  Patapsco  Canal  Company”  shall  fail  to 
construct  said  lateral  canal,  or  shall  neglect  to  keep  the  same  in  re¬ 
pair,  so  as  to  afford  atall  times  a  good  ascending  and  descending  navi¬ 
gation  for  boats  or  other  craft  navigating  from  the  Susquehannah  to 
the  Susquehannah,  or  if  the  said  company  shall  use  the  waters  of  said 
canal  or  canals  for  any  other  purpose  than  that  of  navigation,  or  if  • 
they  shall  directly  or  indirectly  engage  in  any  moneyed,  commercial, 
manufacturing,  or  mining  concern,  within  the  State  of  Pennsylvania, 
or  in  any  other  business  whatever  within  said  State,  except  such  as 
may  be  necessary  or  proper  for  the  constructing  of  such  canals  and 
appurtenances,  and  the  performance  of  tjie  several  functions  of  a  ca¬ 
nal  company,  or  shall  otherwise  contravene  the  provisions  of  this  act, 
that  then,  and  in  either  case,  the  Legislature  of  Pennsylvania  shall 
have  full  power  to  alter  or  repeal  this  act,  and  annul  the  privileges 
hereby  granted  to  said  Susquehannah  and  Patapsco  Canal  Company  . 

Sec.  4.  And  be  it  further  enacted  by  the  authority  aforesaid ,  That 
this  act  shall  cease  to  have  validity  if  the  said  Susquehannah  and  Pa 
tapsco  Canal  Company  shall  not  commence  the  said  canal  on  or  be¬ 
fore  the  first  day  of  January,  one"  thousand  eight  hundred  and  thirty  - 
one,  and  shall  not  complete  the  canal  from  York  Haven  to  some  point 
between  the  head  of  tide  and  Havre  de  Grace,  on  or  before  the  first  of 
January,  eighteen  hundred  ami  forty-one. 


70 


ACT  OF  THE  CONGRESS  OF  THE  UNITED  STATES, 

An  act  to  amend  and  explain  an  act ,  entitled  “  An  act  confirming  an 
act  of  the  Legislature  of  Virginia ,  incorporating  the  Chesapeake  and 
Ohio  Canal  Company ,  and  an  act  of  the  State  of  Maryland ,  for  the 
same  purpose." — {Approved  May  23,  1828.] 

Sec.  1.  Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
ihe  United  States  of  America  in  Congress  assembled,  That  the  assent 
already  given  hy  the  United  States  to  the  charter  of  the  Chesapeake 
and  Ohio  Canal  Company,  hy  an  act  of  Congress,  entitled  «  An  act 
confirming  an  act  of  the  Legislature  of  Virginia,  entitled  an  act  in¬ 
corporating  the  Chesapeake  and  Ohio  Canal  Company  ;  and  an  act 
of  the  State  of  Maryland  confirming  the  same,”  shall  not  be  impaired 
by  any  change  of  the  route  of  the  said  Canal,  from  or  above  the  town 
•of  Cumberland,  on  the  river  Potomac,  or  the  distribution  thereof  into 
two  or  more  sections,  at  any  time  hereafter,  or  any  change  in  the  di¬ 
mensions  of  that  part  of  the  present  Eastern  section,  extending  from 
Cumberland,  or  the  mouth  of  Wills’  creek,  to  the  mouth  of  Savage, 
at  the  base  of  the  Alleghany,  or  any  substitution  which  the  interest  of 
the  Chesapeake  and  Ohio  Canal  Company  may,  in  the  opinion  of  the 
Company,  require  to  be  made,  of  inclined  planes,  rail-ways,  or  an 
artificial  road  for  a  continued  Canal  through  the  Alleghany  moun¬ 
tain,  in  any  route  which  may  be,  by  the  Company,  finally  adopted 
therefor,  between  the  town  of  Cumberland  and  the  river  Ohio. 

Sec.  2.  And  be  it  further  enacted ,  That  to  obviate  any  possible  ambi¬ 
guity  that  might  arise  in  the  construction  of  the  second  section  of  the 
act  of  Congress  aforesaid,  the  authority,  by  that  act  designed  to  be 
given  to  the  States  of  Maryland  and  Virginia,  or  to  any  Company 
incorporated  by  either  or  both  of  those  States,  to  extend  a  branch 
from  the  said  Canal,  or  to  prolong  the  same,  from  the  termination 
thereof,  by  a  continuous  canal,  within  or  through  the  District  of  Co¬ 
lumbia,  towards  the  territory  of  either  of  those  States,  shall  be  deem¬ 
ed  and  taken  ^to  be  as  full  and  complete,  in  all  respects,  as  the  autho¬ 
rity  granted  by  that  act  to  the  Chesapeake  and  Ohio  Canal  Compa¬ 
ny  to  extend  the  main  stem  of  the  said  Canal,  within  the  said  Dis¬ 
trict ;  or  the  authority  reserved  to  the  Government  of  the  United 
States  to  provide  for  the  extension  thereof,  on  either  or  both  sides  of 
the  river  Potomac,  within  the  District  of  Columbia  :  Provided ,  That 
nothing  herein  contained  shall  impair  the  restriction  in  the  charter  of 
the  Chesapeake  and  Ohio  Canal  Company,  designed  to  protect  the 
Canal  from  injury,  by  the  prolongation  thereof,  or  by  any  branch 
therefrom. 

Sec.  3.  And  be  it  further  enacted ,  That  the  act  of  the  Legislature  of 
Maryland,  which  passed  at  their  December  session,  of  one  thousand 
eight  hundred  and  twenty-seven,  entitled  “  An  act  further  to  amend 
the  act  incorporating  the  Chesapeake  and  Ohio  Canal  Company,”  be, 
and  the  same  is  hereby,  confirmed,  so  far  as  the  assent  of  Congress 
may  be  deemed  necessary  thereto. 


7 


ACT  OF  THE  CONGRESS  OF  THE  UNITED  STATES, 

An  act  authorizing  a  subscription  to  the  stock  of  the  Chesapeake  and 
Ohio  Canal  Company — [ Approved ,  24th  May,  1828.] 

Sec.  1.  Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled ,  That  the  Secre¬ 
tary  of  the  Treasury  be,  and  he  is  hereby,  authorized  and  directed  to 
subscribe,  in  the  name  and  for  the  use  of  the  United  States,  for  ten 
thousand  shares  of  the  capital  stock  of  the  Chesapeake  and  Ohio 
Canal  Company,  arid  to  pay  for  the  same,  at  such  times,  and  in  such 
proportions,  as  shall  be  required  of  and  paid  by  the  stockholders,  gene¬ 
rally,  by  the  rules  and  regulations  of  the  Company,  out  of  the  divi¬ 
dends  which  may  accrue  to  the  United  States  upon  their  bank  stock 
in  the  Bank  of  the  United  States  :  Provided ,  That  not  more  than  one 
fifth  part  of  the  sum,  so  subscribed  for  the  use  of  the  United  States, 
shall  be  demanded  in  any  one  year  after  the  organization  of  the  said 
Company;  nor  shall  any  greater  sum  he  paid  on  the  shares  so  sub¬ 
scribed  for,  than  shall  be  proportioned  to  assessments  made  on  indi¬ 
vidual  or  corporate  stockholders  :  And.  provided,  moreover ,  That,  for 
the  supply  of  water  to  such  other  canals  as  the  State  of  Maryland,  or 
Virginia,  or  the  Congress  of  the  United  States,  may  authorize  to  be 
constructed,  in  connexion  with  the  Chesapeake  and  Ohio  Canal,  the 
section  of  the  said  canal  leading  from  the  head  of  the  Little  Falls  of 
the  Potomac  river,  to  the  proposed  basin,  next  above  Georgetown,  in 
the  District  of  Columbia,  shall  have  the  elevation,  above  the  tide  of 
the  river  at  the  head  of  the  said  Falls,  and  shall  preserve,  throughout 
the  whole  section  aforesaid,  a  breadth  at  the  surface  of  the  water,  of 
not  less  than  sixty  feet,  and  a  depth,  below  the  same,  of  not  less  than 
five  feet,  with  a  suitable  breadth  at  bottom. 

Sec.  2.  And  be  it  further  enacted ,  That  the  said  Secretary  of  the 
Treasury  shall  vote  for  the  President  and  Directors  of  the  said  Com 
pany,  according  to  such  number  of  shares  as  the  United  States  may 
at  any  time  hold  in  the  stock  thereof,  and  shall  receive,  upon  the  said 
stock,  the  proportion  of  the  tolls  which  shall,  from  time  to  time,  be  due 
to  the  United  States,  for  the  shares  aforesaid  ;  and  shall  have  and  en¬ 
joy,  in  behalf  of  the  United  States,  every  other  right  of  a  stockholder 
in  the  said  company. 


ACT  OF  THE  CONGRESS  OF  THE  UNITED  STATES 

An  act  to  enlarge  the  powers  of  the  several  Corporations  of  the  District 
of  Columbia ,  and  for  other  purposes. — [ Approved ,  May  24,  1828.] 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  Unit - 
ted  States  of  America  in  Congress  assembled ,  That  the  Corporation  of 
Washington,  the  Corporation  of  Georgetown,  and  the  Corporation 
of  Alexandria,  within  the  District  of  Columbia,  shall,  severally,  have 


72 


full  power  and  authority  to  subscribe  and  pay  for  shares  of  the  stock 
of  the  Chesapeake  and  Ohio  Canal  Company ;  and  all  such  subscrip¬ 
tions  as  shall  have  been  already  made  by  either  of  the  said  Corpora 
tions,  shall,  and  the  same  are  hereby  declared  to  he  valid  and  bind¬ 
ing  on  the  said  Corporations,  respectively. 

Sec.  2.  And  be  it  further  enacted,  That  the  said  Corporations  shall 
severally,  have  power  and  authority,  from  time  to  time,  as  the  same 
may  be  deemed'  by  them,  respectively,  either  necessary  or  expedient, 
to  borrow  money,  at  any  rate  of  interest  not  exceeding  six  per 
centum  per  annum,  to  pay  their  respective  subscriptions,  and  the  in¬ 
terest  accruing  thereon,  to  the  amount  which  they,  have  subscribed, 
or  shall  hereafter  subscribe. 

Sec.  4.  And  be  it  further  enacted ,  That  the  said  Corporations  are, 
respectively,  empowered  to  employ  an  agent  or  agents,  for  the  pur¬ 
pose  of  obtaining  subscriptions  to  the  loan  or  loans  authorized  by  this 
act,  or  of  selling,  from  time  to  time,  the  certificates  of  stock  which 
may  be  created  in  pursuance  thereof,  and  to  fix  the  compensation  of 
such  agent  or  agents,  which  they  shall  respectively  pay,  as  well  as 
all  other  expenses  attending  the  said  loans,  out  of  the  proceeds  there¬ 
of,  or  of  any  other  funds  wliicli  they  may  respectively  provide. 

Sec.  5.  And  be  it  further  enacted ,  That  a  tax,  at  the  rate  of  one 
per  centum;  and  thirteen  hundredths  of  one  per  centum,  on  the  assess¬ 
ed  value  of  the  real  and  personal  estates  within  the  City  of  Washing¬ 
ton,  as  shall  appear  by  the  appraisement  thereof,  made  under  the  au¬ 
thority  of  the  Corporation,  or  of  the  several  acts  of  Congress, 
hereinafter  declared  to  be  revived  and  in  force,  within  the  said  Cor¬ 
poration,  to  be  existing  at  the  time  hereinafter  limited  for  the  collec¬ 
tion  of  the  said  tax  ;  and  at  the  rate  of  fifty-six  hundredths  of  one  per 
centum  on  the  assessed  value  of  the  real  and  personal  estate  within 
the  town  of  Georgetown,  as  shall  appear  by  the  appraisement  thereof, 
made#  under  the  authority  of  the  Corporation,  or  of  the  several  acts  of 
Congress,  hereinafter  declared  to  be  revived  and  in  force,  within  the 
said  corporation,  to  be  existing  at  the  time  hereinafter  limited  for  the 
collection  of  the  said  tax  ;  and  at  the  rate  of  fifty-eight  hundredths  bf 
one  per  centum  on  the  assessed  value  of  the  real  and  personal  estate 
within  the  town  of  Alexandria,  as  shall  appear  by  the  appraisement 
thereof,  ma*de  under  the  authority  of  the  corporation  of  the  sa*id  town, 
or  of  the  several  acts  of  Congress,  hereinafter  declared  to  be  revived 
and  in  force,  within  the  said  corporation,  to  be  existing  at  the  time 
hereinafter  limited  for  the  collection  of  the  said  tax  ;  be,  and  the  same 
is  hereby,  imposed  and  assessed  on  the  real  and  personal  estate  lying 
and  being  in  the  said  city  and  towns  :  and,  upon  the  failure  of  the  said 
corporations,  or  of  any  of  them,  to  pay,  into  the  Treasury  of  the  Unit¬ 
ed  States,  ninety  days  before  the  same  shall  become  due,  to  the  holder 
of  the  shares  or  certificates  of  such  loan  or  loans,  as  aforesaid,  accord¬ 
ing  to  the  terms  and  conditions  thereof,  the  sum  or  sums  which  they, 
or  any  of  them,  shall  have  respectfully  stipulated  to  pay  at  the  expira¬ 
tion  of  the  period  aforesaid,  so  that  the  same  shall  not  be  ascertained 
beforehand  to  be  in  readiness  to  meet  the  demand  or  claim  about  to 


I 


73 


arise  on  the  shares  or  certificates  of  the  said  loan — the  President  of 
the  United  States  shall  be,  and  lie  is  hereby,  empowered  to  appoint  a 
collector  or  collectors,  whose  duty  it  shall  be  to  proceed  and  collect 
the  tax  imposed,  as  above,  on  the  real  and  personal  estate  in  the  said 
city  and  town,  or  either  of  them,  the  corporation  or  corporations  of 
which  shall  have  so  failed  to  pay,  as  aforesaid,  in  advance,  the  sum  or 
sums  about  to  become  due  and  demandable  as  aforesaid,  or  any  part 
thereof  remaining  unpaid,  as  aforesaid,  into  the  Treasury, ninety  days 
in  advance ;  such  part,  in  case  a  part  only  be  so  in  arrear,  to  be  ra¬ 
tably  and  equally  assessed,  levied,  and  collected,  upon  the  property 
chargeable  as  aforesaid,  with  the  said  tax,  within  the  said  city  and 
towns,  or  either  of  them,  making  such  default  in  paying  as  required, 
ninety  days  in  advance,  as  aforesaid  :  the  appraisement  or  assessment 
of  the  value  of  the  said  estates,  preparatory  to  the  collection  of  the 
said  tax,  if  not  previously  made  by  the  said  corporation,  to  be  made 
in  the  mode  prescribed,  as  aforesaid,  in  the  several  acts  of  Congress, 
hereby  revived  and  put  in  operation  :  Provided ,  That,  if  satisfactory 
evidence  be  afforded  the  President  of  the  United  States,  by  the  seve¬ 
ral  corporations  aforesaid,  that  they  are  proceeding,  in  good  faith, 
to  raise  and  pay,  in  due  time,  their  portions,  respectively,  of  the  said 
loan  or  loans,  and  will  be  competent  to  raise  the  same  by  the  means 
on  which  they  rely,  he  shall  be,  and  he  is  hereby,  empowered  to  re¬ 
strain  such  collector  or  collectors  from  proceeding  to  collect  the  said 
tax  within  the  corporation  affording  the  evidence  aforesaid,  until  the 
expiration  of  the  ninety  days  aforesaid,  when,  if  the  amount  of  the 
said  tax  be  not  actually  paid,  the  collection  thereof  shall  proceed, 
without  further  delay,  on  notice  to  the  collector  of  such  default. 

Sec.  6.  And  be  it  further  enacted ,  That  the  collector  or  collectors, 
who  may  be  appointed  as  aforesaid,  shall  give  bond,  with  good  and 
sufficient  security,  for  the  faithful  performance  of  the  duties  required 
by  this  act,  and  shall  possess  all  the  powers,  be  subject  to  all  the  ob¬ 
ligations,  and  proceed,  in  all  respects,  in  the  discharge  of  his  or  their 
duties,  in  collecting  the  said  tax,  as  the  several  collectors  possessed, 
were  subject  to,  and  were  required  to  do,  by  an  act,  entitled  “  An 
.  act  to  provide  additional  revenues  for  defraying  the  expenses  of  Go¬ 
vernment,  and  maintaining  the  public  credit,  by  laying  a  direct  tax 
upon  the  District  of  Columbia,”  approved  the  27th  of  February,  one 
thousand  eight  hundred  and  fifteen,  and  by  the  several  acts  of  Con¬ 
gress,  therein  referred  to,  or  which  were  subsequently  passed,  in  or¬ 
der  to  alter  or  amend  the  same ;  all  of  which  acts,  for  the  effectual 
fulfilment  of  the  purposes  of  this  act,  and  according  to  the  tenor  and 
intent  thereof,  are  hereby  declared  to  be  revived,  and  in  full  force, 
within  the  limits  of  the  several  corporations  aforesaid.  • 

Sec.  7.  And  be  it  further  enacted ,  That  the  tax  imposed  by  this 
act,  shall  be  continued  and  collected,  from  time  to  time,  according  to 
the  provisions  and  conditions  of  this  act,  aryJ  of  the  several  acts  afore¬ 
said,  so  long  as  the  proceeds  thereof  may,  by  any  possibility,  be  re¬ 
quired,  to  meet  the  payment  of  the  several  loans  authorized  as  afore¬ 
said  :  Provided9  however ,  That  all  or  either  of  the  said  corporations 
8 


74 


may,  in  the  negotiation  of  such  loan  or  loans,  as  they  or  either  of 
them,  shall  deem  it  expedient  to  make,  in  pursuance  of  the  authority 
vested  in  them  by  this  act,  stipulate  such  terms  or  conditions,  for  the 
payment  of  the  interest,  or  the  redemption  of  the  principal  sum  there¬ 
of,  as  shall  dispense  with  the  system  of  taxation  provided  by  this  act* 
Sec.  8.  Jlnd  be  it  further  enacted,  That,  in  the  event  that  any  loan 
or  loans  shall  be  negotiated  by  the  said  corporations,  or  any  one  of 
them,  to  the  extent,  in  the  whole  or  in  part,  of  the  subscription  of  one 
or  all  of  the  said  corporations,  to  the  stock  of  the  Chesapeake  and 
Ohio  Canal  Company,  in  conformity  with  the  provisions  of  this  act, 
and  based  upon  the  system  of  taxation  therein  provided  ;  a  copy  or 
copies  of  the  contract  or  contracts,  for  any  and  all  such  loans,  shall, 
as  soon  as  practicable,  after  the  execution  thereof,  be  deposited,  either 
by  the  corporation  or  corporations  contracting  shch  loan  or  loans, 
or  by  the  creditor  or  creditors  interested  therein,  with  the  Secretary 
of  the  Treasury  ;  and,  out  of  all  such  sums  as  shall  be  paid,  by  the 
respective  corporations,  in  advance,  as  aforesaid,  on  account  of  their 
several  contracts,  or,  as  shall  be  levied  and  collected,  in  manner  here¬ 
inbefore  provided,  the  holders  of  the  certificates  of  any  such  loan 
shall  be  entitled  to  receive,  at  the  Public  Treasury,  such  amount  as 
may  be  due  to  them,  respectively  ;  and,  on  the  occurrence  of  any  de¬ 
ficiency  in  the  sum  or  sums,  voluntarily  paid  in,  or  assessed  and  col¬ 
lected,  within  the  said  corporations,  respectively,  for  the  payment  of 
their  respective  creditors,  the  extent  of  such  deficiency  shall  be  as¬ 
certained  by  the  Secretary  of  the  Treasury,  from  a  reference  to  the 
terms  of  the  loan  or  loans,  in  relation  to  which  such  deficiency  may 
occur ;  and,  being  so  ascertained,  and  published  in  some  one  or  more 
newspapers,  printed  in  the  District  of  Columbia,  the  Secretury  of  the 
Treasury  shall  instruct  the  proper  collector  to  proceed  to  collect,  and 
pay  into  the  Public  Treasury,  the  said  amount,  with  all  lawful  charges 
attending  the  same,  according  to  such  further  ratable  assessment, 
upon  the. estates  and  property  within  the  jurisdiction  of  the  corpora¬ 
tion  in  arrear,  according  to  the  provisions  of  this  act,  and  of  the  se¬ 
veral  acts  referred  to  therein,  as  shall  be  sufficient  to  supply  such  as¬ 
certained  deficiency ;  and,  on  the  completion  of  such  collection,  the 
holder  or  holders  of  the  certificates  of  the  stock  of  the  corporation 
shall  be  entitled  to  receive  such  amount  as  may  have  been  found  due, 
and  unprovided  for,  by  the  sums  before  paid  in,  or  collected,  on  ac¬ 
count  of  such  corporation. 


[Under  the  authority  of  the  foregoing  acts,  the  following  were  ap¬ 
pointed  commissioners  for  receiving  subscriptions  to  the  stock  of  the 
Chesapeake  and  Ohio  Canal  Company,  on  the  21st  May,  1826  : 


By  the  President  of  the  United  States  : 


Samuel  H.  Smith,  1 

Anthony  C.  Cazenove,  t  For  the  District  of  Columbia. 
Clement  Smith,  J 


} 


?5 


By  the  Governor  of  Virginia 

John  C.  Hunter, 

William  Ellzey, 

Richard  H.  Henderson. 

By  the  Governor  of  Maryland 
Samuel  Sprigg, 

Frisby  Tilghman, 

Philip  E.  Thomas,] 


AN  ACT  (of  the  Corporation  of  Washington J  to  authorize  a  subscrip¬ 
tion  to  the  capital  stock  of  the  Chesapeake  and  Ohio  Canal  Com¬ 
pany. 

Be  it  enacted  by  the  Board  of  Aldermen  and  Board  of  Common  Coun¬ 
cil  of  the  city  of  Washington ,  That  on  the  opening  of  the  books 
for  receiving  subscriptions  to  the  capital  stock  of  the  Chesapeake  and 
Ohio  Canal  Company,  the  Mayor  be,  and  he  is  hereby  authorized 
to  subscribe  for  ten  thousand  shares  of  the  capital  stock  of  said  com¬ 
pany,  in  the  name  and  for  the  benefit  of  this  Corporation. 

Approved,  September  13th,  1827. 

JOSEPH  GALES,  Jr. 

Mayor. 

- —  I 

AN  Ordinance  ( of  the  Corporation  of  Georgetown,  J  authorizing  a 
subscription  for  two  thousand  five  hundred  shares  of  the  capital 
stock  of  the  eastern  section  of  the  Chesapeake  and  Ohio  Canal 
Company. 


Be  it  ordained  by  the  Board  of  Aldermen  and  Board  of  Common 
Council  of  the  Corporation  of  Georgetown ,  That  the  Mayor  be, 
and  he  is  hereby,  authorized  to  subscribe,  in  behalf  of  this  Corpora¬ 
tion,  for  two  thousand  five  hundred  shares  of  the  capital  stock  of  the 
eastern  section  of  the  Chesapeake  and  Ohio  Canal  Company,  so  soon 
as  the  books  for  receiving  subscriptions  therefor  shall  be  opened,  and 
to  meet  the  instalment  due  at  the  period  of  subscription,  the  Clerk  is 
hereby  authorized  and  required  to  pay  to  the  order  of  the  Mayor,  the 
sum  of  two  thousand  five  hundred  dollars,  out  of  any  unappropriated 
money  in  the  Treasury. 

WILLIAM  JEWELL,  . 

President  Board  Common  Council . 

JAMES  DUNLOP, 
Recorder ,  and  President  Board  of  Aldermen . 

Approved  22d  September,  1827. 

'  JOHN  COX, 

•  Mayor . 


True  copy  from  the  record,  Test : 


JOHN  MOUNTZ,  Clerk. 


I 


76 

AN  ACT  authorizing  a  Subscription ,  by  the  Common  Council  of  Alex- 
andria9for  Stock  of  the  Chesapeake  and  Ohio  Canal  Company. 

Sec.  1 .  Be  it  enacted  by  the  Common  Council  of  Alexandria ,  That 
the  President  of  the  Common  Council  be  and  he  is  hereby  authorized 
and  required,  for  and  on  behalf  of  the  Common  Council  of  Alexan¬ 
dria,  to  subscribe  two  thousand  five  hundred  shares,  of  one  hundred 
dollars  each,  to  the  capital  stock  of  the  Chesapeake  and  Ohio  Canal 
Company,  which  subscription  shall  be  binding  and  obligatory  on  the 
Corporation  when  the  Congress  of  the  United  States  shall  have  au¬ 
thorized  a  subscription  for  not  less  than  ten  thousand  Shares  of  the 
capital  stock  of  the  said  company. 

Sec.  2.  And  be  it  further  enacted,  That  this  Act  shall  commence 
and  be  in  force  from  and  after  the  passing  thereof. 

Passed  in  council  this  tenth  day  of  November,  eighteen  hundred 
and  twenty-seven. 

JOHN  C,  VO  WELL,  Pres .  C.  C. 

Approved, 

THOMPSON  F.  MASON,  Mayor . 

Test, 

J.  P.  THOMPSON,  Clerk. 


Office  of  the  Chesapeake  and  Ohio  Canal  Company , 
f  Washington,  April  24 th,  1830. 

1  herJfty  certify,  that  on  the  2d  day  of  October,  1827,  the  amount 
of  Stock  subscribed  for  (unconditionally  subscribed  for)  in  the  Che¬ 
sapeake  and  Ohio  Canal  Company,  exceeded  the  sum  of  one  million 
and  five  hundred  thousand  dollars,  over  and  above  the  subscriptions 
payable  in  the  stock  and  debts  of  the  late  Potomac  Company. 

JOHN  P.  INGLE, 
Clerk  Chesapeake  and  Ohio  Canal  Co* 


B. 

The  evidence  that  the  left  bank  of  the  Potomac  river  bad  been  ap¬ 
propriated  to  the  continuous  canal,  by  which  the  entire  fall  of  more 
than  six  hundred  feet  between  Cumberland  and  the  tide  was  to  be 
overcome,  was  submitted  to  the  Chancellor  by  the  council  who  first 
addressed  the  Chancellor  in  behalf  of  the  Chesapeake  and  Ohio 
Canal  Company,  and  consisted  of : 

1st.  The  report  of  the  Principal  Engineer  of  the  Board  of  Public 
Works  of  Virginia,  submitted  to  the  Legislature  of  that  State  by 
the  Governor,  on  the  27th  day  of  December,  1820. 

2d.  Of  the  report  of  the  Commissioners  appointed  by  the  Legisla¬ 
tures  of  Maryland  and  Virginia  to  survey  the  river  Potomac,  and 
to  report  a  route  and  an  estimate  of  the  cost  of  a  canal  from  tide 


77 


water  to  the  highest  point  to  which  the  improvement  of  the  naviga¬ 
tion  of  the  river  could  be  carried. 

3d.  Of  the  1st  and  2d  reports  of  the  United  States’  Board  of  In¬ 
ternal  Improvement,  the  last  of  which  was  accompanied  by  maps, 
delineations,  and  estimates  of  the  route,  dimensions, -and  cost,  of  a 
canal  from  Georgetown  to  Pittsburg,  communicated  to  Congress  on 
the  14th  day  of  February,  1825,  and  the  7th  day  of  December,  1826, 
respectively  published  by  their  order,  and  referred  to  in  those  prV 
ceedings  of  the  citizens  of  Baltimore  which  preceded  the  application 
for  the  act  of  incorporation  of  the  Baltimore  and  Ohio  Rail  Road 
Company. 

4th.  Of  the  re-examination  and  revision  of  the  route,  plan,  and  es¬ 
timates  of  the  United  States’  Board  of  Internal  Improvement,  made 
pursuant  to  an  order  of  the  President  of  the  United  States,  at  the 
instance  of  many  members  of  the  House  of  Representatives,  and  com¬ 
municated  by  message  to  the  House  of  Representatives,  on  the  18th 
of  January,  1828,  in  a  report  to  the  Department  of  War,  by  two 
Civil  Engineers,  Nathan  S.  Roberts,  and  James  Geddes,  which  re¬ 
port  was  accompanied  by  maps  and  plans,  and  published  by  order 
of  the  House  of  Representatives. 

This  evidence  is  contained  in  the  following  extracts  from  those 
reports  : 

First. 

“  On  the  30th  of  the  6th  month  (June)  1820,  I  commenced  the 
“  examination. 

“  The  examination  of  the  river  from  Cumberland  downwards, 
“  was  commenced  on  the  10th  of  the  7th  month,  (July  18,  1820.) 

“  Just  below  Shepherdstown,  a  long,  shallow  ripple  occurs. 
“  The  navigation  is  then  good  to  the  head  of  the  long  canal ,  at  the 
“  beginning  of  the  Shenandoah  Falls. 

**  About  one-half  a  mile  below  the  ferry,  (Harper’s  Ferry)  arc  two 
“  short  canals ,  called  by  the  boatmen,  Bullring  Falls. 

“  The  dam  of  the  Seneca  Falls  requires  repairing,  so  as  to  turn 
“  more  water  into  the  canal. 

“  The  greatest  obstruction  to  the  navigation  any  where  below 
“  Williamsport,  in  the  present  state  of  the  water,  is  at  the  Great  Falls.” 
“  The  dam  requires  repairing  and  extending,  so  as  to  guide  at  least 
u  six  or  eight  inches  more  water  in  the  canal. 

“  The  bed  of  the  river  from  the  Great  Falls  to  the  head  of  the 
**  Little  Falls  Canal  is  generally  very  rough. 

“  The  current  for  some  distance  below  the  hills  is  so  rapid  in  high 
“  water,  and  likewise  so  deep,  that  it  renders  useless  the  setting  poles  : 
“  and  the  unevenness  of  the  crags  on  shore  makes  it  extremely  difli- 
“  cult  and  dangerous  to  carry  a  towing  line  over  them. 

“  At  Stubblefield  Falls,  the  pass  is  safe  for  descending  boats, 
“  except  that  the  rapidity  of  the  current  over  the  uneven  bottom 
“  produces  a  roughness,  that  when  full  loaded,  causes  them  to  ship 


78 


water  ;  but  the  angle  of  ascent  is  so  great,  and  the  sluice  being 
situated  in  the  middle  of  the  river  where  no  advantage  can  be 
**  derived  from  towing,  it  is  in  Vain  to  think  of  ascending  with  any 
44  thing  like  a  full  load. 

44  But  when* the  powers  of  art  have  been  exerted  to  the  utmost 
“  extent,  to  produce  an  easy  navigation  in  the  bed  of  a  stream,  still 
“  it  must  hold  a  very  inferior  grade  to  that  of  an  independent  canal ; 
44  because  the  natural  fall  of  the  river  must  be  overcome  by  the  labor 
44  of  man  ;  and  if  the  whole  fall  of  a  river  is  great  in  proportion  to 
“  its  length,  it  will  require  a  great  number  in  proportion  to  the  ton- 
4 4  nage  :  and  therefore  must  be  very  expensive  compared  to  a  canal 
44  finished  with  locks,  where  the  loaded  boats  are  drawn  on  level  water 
44  by  the  labor  of  horses.  But  this  kind  of  improvement  requires  large 
44  funds,  and  should  not  be  undertaken  until  the  period  arrives  that 
4 4  gives  a  reasonable  prospect  of  remuneration  from  the  trade  that 
44  maybe  carried  on  through  its  channel. 

“  The  transportation,  however,  on  such  a  canal,  is  so  much  cheaper 
4(  than  by  any  other  means  of  internal  improvement,  that  it  may 
4 4  happen,  and  I  believe  it  sometimes  does  happen,  that  such  a  period 
46  arrives,  before  those  concerned  think  of  making  a  single  calculation 
46  on  the  subject.  Knowing  the  great  superiority  of  this  mode  of 
46  improvement,  and  believing  it  may  possibly  be  some  time  adopted 
44  in  the  Potomac,  I  have  so  far  made  myself  acquainted  with  the 
44  grounds  adjacent  to  the  river,  as  to  enable  me  to  form  some  esti- 
46  mate  of  the  expense  of  an  independent  canal  from  Cumberland  to 
44  the  Great  Falls.  From  Cumberland  to  the  Great  Falls  is  176 
44  miles.  The  fall  in  this  distance  is  572  feet.  It  is  to  be  remcm- 
44  bered,  that  canals  conducted  on  low  levels  along  the  ravines  of  a 
44  river,  have  no  deep  vallies  or  ravines  to  cross,  as  they  must  ncces- 
44  sarily  have  on  high  levels  in  an  uneven  country,  and  therefore 
44  the  great  embankments  and  elevated  aqueducts  which  constitute 
44  the  largest  items  of  expense  on  many  canals,  are  avoided.” 

“  On  such  a  canal  as  this,  the  actual  cost  of  transportation  for  a 
44  barrel  of  flour  from  Cumberland  to  the  Great  Falls,  would  not 
44  exceed  15  cents,  nor  a  bushel  of  coal  6  cents,  and  other  articles  in 
“  proportion,  provided  the  boats  were  supplied  with  one-quarter 
44  back  load  of  plaster  of  Paris,  or  any  thing  else  at  the  low  price  of 
44  g3  per  ton.” 

44  Having  given  this  description  of  the  river,  and  the  foregoing 
44  estimates,  it  must  remain  for  the  company  after  consulting  the 
44  state  of  their  funds,  and  other  circumstances,  over  which  I  have 
44  no  control,  to  determine  on  the  most  proper  mode  of  expending 
44  money  in  future  on  this  very  important  river.” 

The  preceding  report  made  a  part  of  and  was  printed  with  a  mes¬ 
sage  from  the  Governor  of  Virginia  to  the  House  of  Delegates,  on  the 
27th  of  December,  1820. 


79 


Second. 

44  To  his  Excellency,  the  Governor  of  Jtfaryland : 

« The  commissioners  appointed  by  the  law  of  Virginia,  and  the 
44  resolutions  of  Maryland,  of  the  year  1821,  jointly  to  examine  the 
44  affairs  of  the  Potomac  Company,  the  state  of  the  navigation  of  the 
44  river  Potomac,  its  susceptibility  of  improvement,  and  to  make  re- 
44  port,  whether  the  said  Company  had  complied  with  the  terms  of  its 
“  charter,  granted  by  the  two  States,  and  its  ability  to  comply  with- 
u  in  a  reasonable  time,  and  whether  any,  and  what  aid  should  be 
44  given  to  the  said  Company,  and  what  would  be  the  best  means  of 
44  effecting  an  improvement  in  the  navigation  of  the  said  river,  re- 
44  port : 

[EXTRACT  FROM  THE  SAME.]  ; 

46  Upon  a  full  view  of  the  different  plans,  therefore,  it  cannot  for  a 
44  moment  be  doubted,  but  that  the  adoption  of  a  regular  canal,  out  of 
44  the  river,  though  following  its  ravine ,  will  be  the  most  useful  and 
44  durable  improvement,  and  when  the*  advantages  and  cost  of  each 
44  mode,  (that  by  4  sluices,’  by  ‘dams  and  locks, ’  and  by  a  ‘continu- 
46  ed  canal,’)  are  relatively  considered,  incomparably  the  cheapest.” 

The  Engineer  engaged  by  the  Commissioners,  having  died  in  the 
progress  of  the  survey,  another  Engineer  was  engaged  to  complete 
his  labour ;  and  from  the  last,  a  report  was  made  to  the  Commission- 
ers,  from  which  the  following  is  an  extract : 

44  It  has  been  deemed  expedient  to  divide  into  sections  the  proposed 
44  canal,  for  the  purpose  of  facilitating  its  execution.  The  first  sec- 
44  tion  extends,  from  the  commencement  at  Cumberland,  in  Mary- 
44  land,  to  the  mouth  of  Capon  in  Virginia,  54$  miles  :  the  second 
44  section,  from  the  mouth  of  Capon,  to  the  mouth  of  the  Great  Cono- 
44  cocheague,  or  Williamsport,  in  Maryland,  33$  miles  :  the  third 
44  section,  wholly  on  the  Maryland  side  of  the  river,  from  the  mouth 
44  of  Great  Conococheague,  to  Harper’s  Ferry,  opposite  the  mouth  of 
44  the  Shenandoah  river,  38J  miles  :  the  fourth  section,  still  on  the 
44  Maryland  side,  from  the  head  of  the  Great  Falls,  to  tide  water,  in 
44  the  District  of  Columbia,  12  miles  :  amounting  altogether,  to  185 
44  miles  of  canal  navigation,  from  Cumberland,  to  tide  water. 

44  Recapitulation. — The  first  section  commences  at  Cumberland,  in 
44  Maryland,  and  crossing  the  river  three  times,  terminates  at  the 
“  mouth  of  Capon,  on  its  western  bank.  The  first  crossing  to  the 
44  Virginia  shore,  just  above  Crassy’s  landing,  sixteen  miles  from 
44  Cumberland,  is  by  a  dam,  of  suitable  elevation ;  then  descending  by 
44  locks,  into  the  still-water,  above  the  dam,  will  pass  through  a  guard 
44  lock  into  a  canal  on  the  opposite  shore. 

‘‘The  second,  crossing  to  the  Maryland  shore,  is  also  by  means  of 
a  dam  placed  just  below  the  mouth  of  South  Branch,  19  miles  from 
Cumberland,  to  raise  the  water  in  the  Potomac  eight  feet.  In  every 
case  where  a  dam  is  the  means  of  crossing  a  river,  a  guard-lock  is 
indispensable  at  the  entrance  of  the  canal  on  the  opposite  shore. 
Aqueducts,  however,  as  the  mode  of  crossing  rivers,  with  a  canal, 


80 


are  on  accou  nt  of  the  superior  safety  and  convenience  which  the 
iford  to  navigation,  decidedly  preferable  to  dams,  although  more  ex¬ 
pensive  in  construction  ;  yet,  whfere  we  cannot  avail  ourselves  of  suf¬ 
ficient  feeders  from  side  streams  to  keep  always  a  full  and  certain 
supply  of  water  in  our  upper  levels,  dams  are  adopted,  because,  by 
them,  we  obtain  from  the  river  an  abundant  supply.  This  is  pre¬ 
cisely  the  case  in  the  first  crossing  ;  and,  in  the  second,  there  is  not 
sufficient  elevation  for  an  aqueduct.” 

“  The  second  section  commences  with  an  aqueduct  across  Capon, 
and,  continuing  on  the  Virginia  side,  14  miles,  crosses  the  Potomac 
on  an  aqueduct  to  the  Maryland  shore,  and  terminates  at  the  western 
bank  of  the  Great  Conococheague.” 

“The  third  section  commences  with  an  aqueduct  across  Great  Co- 
“  nofcocheague,  and,  continuing  on  the  Maryland  side,  terminates  at 
^Harper’s  Ferry. 

“  The  fourth  section  commences  at  Harper’s  Ferry,  and,  continu- 
«  ing  on  the  Maryland  side,  terminates  at  the  head  of  the  Great  Falls. 

“  The  fifth  section  commences  at  the  head  of  the  Great  Falls,  and, 
“  continuing  on  the  Maryland  side,  terminates  at  the  head  of  tide 
“  water  navigation,  in  the  District  of  Columbia.” 


Subscribed 


ISAAC  BRIGGS. 


Georgetown,  12 th  Month ,  ( December )  19,  1822. 


The  Commissioners’  Report  to  the  Governor  of  Maryland,  embra¬ 
cing  the  above,  is  dated  Georgetown,  December  19,  1822,  and  sub¬ 
scribed  by 

ATHANS.  FENWICK, 
WILLIAM  NAYLOR, 
MOSES  T.  HUNTER. 


Third. 


Extracts  from  the  President’s  Message  of  February  14,  1825,  to  the 
House  of  Representatives : 

<  ‘  From  the  views  which  I  have  taken  of  these  reports,  I  contem¬ 
plate  results  of  incalculable  advantage  to  our  Union,  because  I  see  in 
them  the  most  satisfactory  proof  that  certain  impediments  which  had 
a  tendency  to  embarrass  the  intercourse  between  some  of  its  most 
important  sections,  may  be  removed  without  serious  difficulty.” 

JAMES  MONROE. 


Extract  from  the  Letter  of  the  Secretary  of  War ,  which  accompanied 
the  Report  in  its  passage ,  from  his  office,  to  tht  President: 

War  Department,  February  12,  1825. 

“The  Board  have  reported  favorably  as  to  the  practicability  of 
passing  the  summit  level  between  the  waters  of  the  Potomac  and  the 


81 


Ohio,  by  means  of  a  canal;  and  that  it  may  be  effected  at  a  small 
expense,  compared  with  the  advantages  expected  to  result  from  its 
execution,  in  a  national  and  commercial  point  of  view.” 

J.  C.  CALHOUN. 

Extract  from  Iht  instructions  given  the  Board  of  Internal  Improvement 
by  the  Chief  Engineer  of  the  Department  of  War: 


“  The  Board  will  proceed  to  make  an  immediate  reconnoissance 
of  the  country  between  the  tide  waters  of  the  river  Potomac  and 
head  of  steamboat  navigation  of  the  Ohio,  and  between  the  Ohio  and 
Lake  Erie,  for  the  purpose  of  ascertaining  the  practicability  of  a 
communication  between  those  points,  of  designating  the  most  suitable 
route  for  the  same,  and  of  forming  plans  and  estimates  in  detail  of 
the  expense  of  execution.” 

“  It  is  very  desirable  that  the  report  should  be  received  on  this  im¬ 
portant  line  of  communication  in  time  to  be  submitted  to  Congress 
at  their  next  session.” 

ALEXANDER  MACOMB, 

Maj.  Gen .  Chief  Engineer . 

Extract  from  the  Report  made  pursuant  to  these  instructions : 


“  CHESAPEAKE  AND  OHIO  CANAL. 


«  This  canal  may  be  divided  in  three  sections,  eastern,  middle,  and 
western. 


“  EASTERN  SECTION. 


“This  section  ascends  the  valley  of  the  Potomac;  as  the  several 
ridges  which  that  river  traverses  and  breaks  through,  oblige  to  fol¬ 
low  its  course,  without  any  deviation,  the  side  on  which  it  should  as¬ 
cend  along  the  river,  is  the  only  choice  left  to  the  Engineer.  We  will, 
therefore,  compare  the  respective  facilities  for  receiving  the  bed  of  a 
canal,  which  exist  on  each  of  these  sides. 

“  From  Georgetown  to  the  Little  Falls’  bridge  the  northern  shore 
of  the  river  is  flat,  whilst,  on  the  southern  shore,  the  mountain  ex-  • 
tends  close  to  the  stream  and  is  more  abrupt. 

“  From  the  Little  Falls  to  the  Monocacy  the  northern  is  very  rug¬ 
ged  ;  but  from  the  Monocacy  to  Harper’s  Ferry  it  offers  a  succession 
of  flats  and  bluffs.  The  southern  shore  on  that  whole  extent  is  very 
rugged  ;  its  banks  of  red  slate  hang  perpendicularly  over  the  stream 
in  several  places. 

“From  Harper’s  Ferry  to  Shcpherdstown,  both  shores  present 
undulating  flats,  and  a  soil  easy  to  work.  The  same  nature  of  ground 
runs  from  Shepherdstown  to  Williamsport. 

“From  Williamsport  to  Hancock, the  northern  shore  presents  ex¬ 
tensive  flats,  whilst  the  mountain  on  the  southern  shore  stretches 
closer  to  the  bed  of  the  river. 

9 


82 


“  From  Hancock  to  Town-creek,  the  northern  shore  is  flat,  to  the 
promontory,  formed  by  Sidelong  Hill,  and  from  thence  presents  a 
succession  of  flats  to  Town-creek.  The  southern  shore  offers  no 
greater  facilities,  except  on  front  of  Sidelong  Hill. 

“From  Town-creek  to  Oldtown,  the  flats  on  the  northern  shore 
are  only  interrupted  by  a  precipitous  bluff,  on  an  extent  of  about 
300  yards.  The  southern  shore  presents  no  advantages  over  it. 

“From  Oldtown  to  Cumberland,  the  northern  shore  is  flat, except 
for  one  mile  along  Alum  Rock,  and  the  same  extends  along  Brad- 
dock’s  Hill. 

“  This  short  analysis  is  sufficient  to  show,  that  the  northern  side  of 
the  valley  offers  the  best  ground  for  receiving  the  bed  of  a  canal. 
Some  portions  of  the  southern  bank  might  be  more  favorable  than 
the  portions  of  the  northern  shore  which  face  them ;  but  in  order  to 
render  this  advantage  available,  it  would  be  necessary  to  cross  the 
river  frequently  by  aqueducts,  which  would  cost  more  than  the  ex¬ 
pense  required  to  subdue  the  obstacles  of  the  northern  shore. 

“  Another  important  consideration,  which  should  determine  our 
preference  of  it,  is  its  exposition  to  the  south,  by  means  of  which,  the 
canal  w  ill  be  earlier  and  longer  navigable,  and  less  subject  to  be 
seized  by  sudden  frosts  in  spring  and  autumn. 

“  In  descending  from  Cumberland,  the  canal  will  cross  Evets 
creek.  From  thence  to  Braddock’s  Hill,  it  will  follow  the  left  shore; 
but  if  it  run  farther'on  that  side,  shelves  should  be  cut  through  Brad- 
dock’s  Hill,  Alum  Hill,  and  Oldtown  bluff,  or  it  should  turn  round 
them  on  embankments,  supported  by  walls. 

From  Town- creek  to  Sidelong  Hill,  the  narrow  strip  which  runs 
along  the  left  shore,  offers  the  best  ground  for  the  canal,  which  must 
cross  Town-creek  and  Fifteen  mile  creek  on  aqueducts. 

“The  long  and  perpendicular  bluff  of  Sidelong  Hill,  compels  to 
cross  the  Potomac  above  the  mouth  of  this  creek,  and  follow  the  right 
shore  till  you  reach  opposite  Conoloway  creek. 

“  From  the  Conoloway  to  the  Conococheague,  at  Williamsport, 
the  canal  may  follow  the  left  shore,  crossing  the  Conococheague  on  an 
aqueduct. 

“From  thence  to  the  foot  of  Elk  Mountain,  in  front  of  Harper’s 
•  Ferry  and  the  Shenandoah,  it  continues  on  the  same  side  crossing 
Antietam  creek. 

“From  Elk  Mountain  to  the  Monocacy,  the  left  shore  offers  the 
best  ground,  though  it  presents  two  formidable  obstacles,  South  and 
Catoctin  Mountains.  The  canal  must  be  led  along  these  points,  on 
shelves  or  embankments.”  S.  BERNARD,  Brig.  Gen. 

JOS.  G.  TOTTEN, 

Maj.  Eng.  Brevet  Lt.  Col . 

Washington  City ,  Feb.  2,  1825. 

“Washington  City,  October  23,  1826. 

“  The  foregoing  facts  and  investigations,  connected  with  those  ex¬ 
posed  in  the  report  A,  (Feb.  1825,)  lead  us  to  recommend  the  follow  ¬ 
ing  route  for  the  Chesapeake  and  Ohio  Canal 


83 

44  From  Georgetown,  D.  C.  to  Cumberland,  it  will  ascend  the  val¬ 
ley  of  the  Potomac,  thence  the  valley  of  Wills’  creek  to  the  mouth  of 
Bowman’s  run.  It  will  then  cross  the  summit  ridge  by  a  tunnel,  and 
descend  in  succession  the  valleys  of  Casselman’s  river  and  the  You- 
ghiogany,  to  terminate  at  Pittsburg,  Penn.,  at  the  mouth  of  the  Mo- 
nongahela.” 

44  Eastern  Section. 

44  From  Cumberland  to  Georgetown  the  valley  of  the  Potomac  is 
rapid,  and  its  sides  formed  of  a  succession  of  bluffs  and  narrow  flats  ; 
the  bluffs  on  one  side  being  generally  opposite  to  the  flats  on  the 
other.  The  parts  which  offer  the  greatest  obstacles  to  the  location  of 
the  work,  are  those  where  the  stream  forces  its  way  through  the  high 
ridges  whose  direction  is  transverse  to  the  bed  of  the  river.  At  these 
places  the  banks  are  steep,  the  stream  much  winding,  and  its  velo¬ 
city  very  great,  owing  to  falls  and  rapids.  Whilst  the  flats  present 
no  difficulties,  the  bluffs  and  steep  parts  oblige,  absolutely,  to  have 
the  canal  supported  by  walls  whose  height  would  place  the  work 
above  the  reach  of  freshets,  and  whose  other  dimensions  should  be 
calculated  to  resist  the  impetus  of  the  stream.  The  freshets  are  from 
1 5  to  30  feet  in  height,  and  the  general  fall  of  the  river  bed,  S  feet 
nearly  per  mile. 

“  To  avoid  the  parts  which,  by  their  steepness,  oppose  the  great¬ 
est  difficulties  to  the  location  of  the  canal,  the  crossing  of  the  stream, 
in  order  to  place  the  work  on  each  bank  alternately,  is  the  first  idea 
which  presents  itself.  But  the  adoption  of  such  a  system  would  lead 
into  the  difficulties  and  great  expenses  attending  the  erection  of  per¬ 
manent  and  solid  aqueducts  across  the  Potomac ;  and,  also,  would 
oblige  to  keep,  in  many  places,  the  level  of  the  canal  at  an  elevation 
which  would  affect  materially  the  other  requisites  of  the  work. 

44  After  due  investigations  upon  this  subject,  we  remain  convinced 
that  it  is  more  expedient,  less  expensive,  and  liable  to  less  accidents, 
to  keep,  without  deviation,  on  the  same  side  of  the  valley  ;  and  the 
Maryland  side  has  received  the  preference,  for  the  following  reasons: 
The  obstacles  are  generally  of  less  magnitude  than  on  the  Virginia 
side  ;  the  exposure  is  more  favorable,  and  will  cause  in  the  Spring 
an  earlier,  and  in  the  Fall  a  later  navigation.” 

44  S.  BERNARD,  Brig,  Gen . 

44  Member  of  the  Board  of  Internal  Improvements . 

44  WM.  TELL  POUSSIN, 

44  Capt.  Top,  Engineers ,  Assistant  to  the  Board. 

‘  «  WM.  HOWARD, 

44  Civil  Engineer ,  Assistant  to  the  Board.” 


84 


Fourth . 

Extract  from  a  report  made  by  Messrs.  Geddes  and  Roberts  to  the  Se¬ 
cretary  of  War ,  communicated ,  in  part ,  to  the  Committee  on  Roads 
and  Canals  of  the  House  of  Representatives ,  on  the  \Oth  of  January , 
1828,  and ,  in  whole,  to  the  House  of  Representatives ,  by  the  Secre¬ 
tary  of  War,  on  the  10 th  of  March,  1828. 

“  The  undersigned  beg  leave  to  report,  that,  in  pursuance  of  an 
appointment  to  view  the  route  and  revise  the  estimates  of  the  Chesa¬ 
peake  and  Ohio  Canal,  a  careful  and  particular  location  and  survey 
has  been  made  of  the  Eastern  section  thereof,  commencing  one  mile 
below  Cumberland,  and  terminating  at  the  tidewater,  at  the  city  line 
of  Georgetown.  Maps  and  profiles  of  the  same  are  herewith  pre¬ 
sented.  Of  the  estimated  expense,  three  different  calculations  have 
been  made.” 

“  First — For  a  canal  and  locks  of  the  dimensions  of  the  State  ca¬ 
nals  of  New  York,  Pennsylvania,  and  Ohio  ;  having,  at  hand,  accu¬ 
rate  calculations  of  their  various  structures,  and  tables  of  the  differ¬ 
ent  depths  of  excavation  and  embankment,  slope,  &c.  Those  canals 
are  forty  feet  at  the  water  surface,  four  feet  depth  of  water,  and  twen¬ 
ty-eight  feet  wide  at  bottom.  The  locks  are  ninety  feet  in  the  cham¬ 
ber,  and  fifteen  feet  in  width. 

“  Second — For  a  canal  of  the  dimensions  required  by  the  Board  of 
Engineers,  viz :  forty-eight  feet  at  the  water  line,  with  serf  berms 
two  feet  horizontally  on  each  side,  five  feet  depth  of  water,  and  thirty 
three  feet  in  width  at  the  bottom.  Locks  one  hundred  and  two  feet 
in  the  chamber,  and  fourteen  feet  in  width  ;  and, 

“  Third — For  a  canal,  as  recommended  by  the  Committee  on  Roads 
and  Canals,  <  that,  wherever  practicable  by  common  excavation,  the 
said  canal  shall  have  its  surface  enlarged  to  sixty  feet,  with  a  pro¬ 
portionate  breadth  at  the  bottom,’  which  is  computed  at  forty-five 
feet,  and  five  feet  depth  of  water.  The  dimensions  of  the  locks  the 
same  as  recommended  by  the  Board  of  Engineers,  viz:  one  hundred 
and  two  feet  in  length,  and  fourteen  feet  in  width.  Those  portions  of 
the  proposed  canal  which  have  been  widened  to  forty-eight  and  sixty 
feet  amount  to  one  hundred  and  twenty-six  miles,  and  two  hundred 
and  ninety-nine  yards,  and  which  may  be  considered  as  the  most  fea¬ 
sible  kind  of  earth  for  excavation,  &c.,  being  mostly  on  old  alluvial 
bottom,  free  from  roots  and  stones,  and  along  moderate  slopes,  from 
six  to  twelve  degrees  of  declivity. 

“  These  parts  of  the  canal,  which,  from  motives  of  safety  and  eco¬ 
nomy,  are  not  enlarged  over  forty  feet  at  surface,  amount  to  sixty 
miles  and  one  thousand  and  fifty-four  yards,  and  include  all  the  deep 
embankment,  steep  side-hill  cutting,  and  embankments  in  the  river — 
on  basements  of  stone,  from  fifteen  thirty  feet  wide,  and  from  two 
to  eight  feet  deep,  or  to  the  surface  of  the  w  ater,  are  calculated,  where 
necessary  ;  and  protected  on  the  outside  by  a  strong  paving  of  stone, 
of  the  average  thickness  of  two  feet  from  the  basement  to  the  top  of 
the  embankment,  with  a  slope  of  one  and  a  half  base,  to  one  perpen- 


85 


dicular.  These  two  portions  make  the  whole  length  of  the  Eastern 
section,  one  hundred  and  eighty-six  miles  and  one  thousand  three 
hundred  aHd  fifty-three  yards.  Each  sub-division  of  which  has  been 
divided  into  miles  and  shorter  distances,  and  carefully  estimated,  to¬ 
gether  with  the  necessary  culverts,  aqueducts,  bridges,  locks,  waste 
weirs,  dams,  and  feeders  ;  all  which  are  included  in  the  following 
calculations.  The  result  is  given  at  the  end  of  each  sub-division, 
and  the  grand  result  at  the  conclusion.” 

44  Remarks  on  first  subdivision. 

• 

44  The  river  embankment  and  paving  are  at  the  Narrows,  Brad- 
dock’s  Hill,  Alum  Hill,  and  other  places  not  named. 

44  It  is  proper  to  observe,  that  the  descriptions  of  difficulties  and 
facilities,  as  given  by  the  report  of  the  United  States’  Engineers,  has 
been  found  to  apply  to  each  subdivision  with  usual  accuracy.” 

44  Remarks  on  second  subdivision. 

44  On  the  31st  mile  of  the  2d  subdivision,  a  dam  across  the  Poto¬ 
mac,  and  a  feeder  to  the  canal,  is  calculated  to  enter  below  the  12th 
lock.  This  dam  will  form  the  second  spacious  basin  for  the  accom¬ 
modation  of  the  Virginia  side,  connected  with  the  canal  hy  the  short 
navigable  feeder  and  the  guard  lock.” 

“  Remarks  on  the  fourth  subdivision. 

44  The  expensive  parts  of  this  subdivision,  and  such  as  would  not 
bear  widening,  are,  side  hill  excavation  near  Fort  Frederick,  the 
cut  through  Prater’s  neck,  and  the  river  embankment  between  Pra¬ 
ter’s  neck  and  Williamsport,  in  twro  places.  In  these  places,  the 
earth  is  supposed  to  be  brought  from  the  Virginia  side  of  the  river, 
and  the  price  (one  hundred  and  two  thousand,  eight  hundred  and 
sixty-nine  dollars  and  ninety  cents,  for  one  mile)  is  made  to  cover 
that,  and,  also,  the  expense  of  the  stone  basing  for  the  banks,  and 
making  a  secure  lining  for  the  canal.  The  stone  for  paving  abound 
wherever  they  are  wanted.” 

“  Remarks .  On  the  6th  subdivision,  below  the  junction  of  the 
Shenandoah  with  the  Potomac,  a  dam  is  calculated  to  raise  the  water 
about  three  feet,  or,  so  high  as  not  to  injure,  the  hydraulic- powder  at 
the  public  works.  This  will  form  the  third  spacious  basin  in  the 
Potomac,  and,  at  this  point  especially,  it  would  be  of  great  public 
utility  to  the  establishment  of  the  United  States  at  Harper’s  Ferry, 
as  well  as  the  trade  of  the  Shenandoah. 

44  It  is  computed  that  this  feeder  from  the  Potomac ,  will  supphj  the 
canal  to  the  head  of  the  Seneca  Falls ,  and  supersede  the  necessity  of 
resorting  to  the  Monocacy  or  Seneca  creeks,  and  thereby  save  the 
damage  done  to  mill  owners,  which  must  he  considerable  if  those 
streams  were  diverted  from  their  present  channels. 

44  It  may  be  here  observed,  that  those  streams  have  been  surveyed 
for  feeders,  as  may  be  seen  on  the  maps;  but,  for  the  above  reasons, 
are  not  included  in  these  estimates.” 

44  Remarks. — On  the  2nd  mile  below  the  mouth  of  Seneca  creek,  a 
44  low  darn  is  calculated  across  the  Potomac,  at  the  head  of  the  Sene- 


86 


“  ca  falls  :  this  will  afford  a  spacious  sheet  of  still* water,  from  the 
“  site  of  the  proposed  dam,  above  the  quarry  where  the  Seneca  stone  is 
“  obtained,  and  will  form  the  4th  spacious  basin  for  the  accommoda- 
“  tion  of  Virginia,  and  the  supply  of  water  thus  received  into  the  ca- 
“  nal  will  prevent  the  necessity  of  taking  the  Seneca  creek  for  a 
“  feeder,  which  is  so  valuable  a  mill  stream  ;  and,  therefore,  is  not 

included  in  this  estimate. 

“  From  Harper’s  Ferry  to  Seneca  Falls,  where  the  next  feeder  en- 
“  ters,  is  over  thirty-nine  miles  ;  and  should  all  the  water  that  could 
tf  be  made  to  enter  the  canal  above,  prove  insufficient,  for  said  dis- 
<<  tance,  enough  could  be  taken  through  short  feeders,  from  Catoctin, 
“  Tuscarora  and  Little  Monocacy  creeks,  without  disturbing  mill 
“  owners. 

JAMES  GEDDES, 

Civil  Engineer. 
NATHAN  S.  ROBERTS, 

Civil  Engineer . 

A  slight  attention  to  the  map  of  the  State  of  Maryland  will  shew 
that  the  preceding  location  of  the  eastern  section  of  the  canal  is  along 
the  south  side  of  the  Potomac. 

The  proof,  that  the  left  bank  of  the  river  was  always  contemplat¬ 
ed  by  the  States,  the  United  States,  and  the  corporations  and  indi¬ 
viduals  who  subscribed  to  the  stock  of  the  canal  on  the  faith  of  those 
surveys  and  estimates,  was  further  corroborated  by  reference  to  the 
geology  of  the  country  through  which  the  Potomac  passes,  the  geo¬ 
graphical  position  of  Cumberland  and  Georgetown,  as  well  as  Wash¬ 
ington,  on  the  left  bank  of  the  river,  the  Southern  exposure  afforded 
along  the  left  bank,  and  the  cost  and  hazard  of  constructing  two 
aqueduct  bridges  across  the  main  river,  if  the  canal  be  driven  from 
the  left  bank  to  the  right  bank,  or  from  the  Maryland  to  the  Vir¬ 
ginia  shore. 

Under  the  first  of  these  heads,  reference  was  made  to  the  high  and 
precipitous  cliff,  and  very  deep  water  along  the  Virginia  shore  next 
above  Georgetown,  and  the  uneven  ground  along  various  other  falls 
and  narrow  passes  of  the  Potomac. 

Under  the  last,  the  relative  difficulties  and  hazard  of  carrying  a 
canal  and  rail  road  across  the  Potomac,  were  contrasted,  with  a  view 
to  demonstrate,  that,  if  either  work  should  cross  the  river,  the  rail¬ 
way  might,  to  give  place  to  the  canal,  since  an  aqueduct  bridge  has 
its  level  prescribed  by  that  of  the  water  of  the  canal,  and  must  occu¬ 
py  a  space  of  eight  feet  above  the  bottom  of  the  qanal,  in  addition  to 
the  depth  of  the  arches  and  their  necessary  cover  of  earth. 

Under  the  3d,  it  was  contended,  that  those  frosts  which  would  sus¬ 
pend  the  use  of  the  canal  much  longer  in  the  year,  if  it  were  conduct¬ 
ed  along  a  North,  than  a  South  exposure,  would  be  much  less  inju¬ 
rious  to  a  rail  road;  and,  for  that  reason,  the  rail  road  should  give 
place  to  the  canal,  on  that  shore  so  long  appropriated  to  its  use. 


87 


C.  . 

the  BALTIMORE  AND  OHIO  RAIL  ROAD  COMPANY, 

vs. 

THE  CHESAPEAKE  AND  OHIO  CANAL  COMPANY,  AND  OTHERS, 

BILL  No.  1. 

To  the  Honorable  Theodorick  Bland,  Chancellor  of  Maryland : 

The  Bill  of  complaint  of  the  Baltimore  and  Ohio  Rail  Road  Com- 
pany,  respectfully  sheweth, 

That  by  an  act  of  the  Legislature  of  Maryland,  passed  at  Decem¬ 
ber  session,  eighteen  hundred  and  twenty-six,  entitled,  An  act  to 
incorporate  the  Baltimore  and  Ohio  Rail  Road  Company,  it  was  en¬ 
acted,  that  as  soon  as  ten  thousand  shares  of  the  capital  stock  of 
said  Company  should  be  subscribed,  the  subscribers  thereof  should  be 
incorporated  into  a  Company,  by  the  name  of  the  Baltimore  and  Ohio 
Rail  Road  Company,  and  should  be  clothed  with  all  the  powers  neces¬ 
sary  to  the  construction  of  a  Rail  Road,  from  the  city  of  Baltimore 
to  the  Ohio  river ;  that  the  sum  required  in  order  to  the  incorpora¬ 
tion  and  organization  of  said  Company,  having  been  previously  ob¬ 
tained,  the  said  Company  was  duly  organized  by  the  election  of  a 
President  and  Directors  to  manage  the  affairs  of  the  same  ;  that  the 
subscriptions  to  the  capital  stock  of  said  Company,  having  been  aug¬ 
mented,  so  as  to  amount  in  all  to  four  millions  of  dollars,  the  said 
Company  .found  itself  at  once  prepared  to  commence  the  construction 
of  said  road  ;  and,  possessed  of  means  deemed  at  least  sufficient  for 
its  completion  to  the  town  of  Cumberland,  in  Alleghany  county,  and 
with  a  view  to  the  construction  of  said  road,  the  President  and  Di¬ 
rectors  of  said  Comply,  caused  all  the  various  routes  for  said  road 
to  be  examined  by  skilful  engineers,  in  order  to  the  determination 
of  the  general  direction,  who  ultimately  recommended  the  adoption  of 
the  southern  route  of  the  said  road,  to  wit  :  from  Baltimore  to  the 
Potomac  river,  by  the  waters  of  the  Patapsco  and  the  Monocacy, 
striking  the  Potomac  at  the  point  of  the  rocks  on  the  north  eastern 
side  of  the  gap,  at  which  the  Potomac  passes  through  the  Catoctin 
mountain,  and  thence  to  Williamsport,  and  thence  with  the  Potomac, 
with  inconsiderable  deviations,  to  Cumberland  ;  that  the  route  for 
said  road  was  finally  adopted  by  the  said  President  and  Directors; 
and  the  said  President  was  ordered,  by  a  resolution  of  the  said  Board 
of  Directors,  to  proceed  at  once  to  the  construction  of  said  road  upon 
said  route,  Your  orator  further  sheweth,  that,  after  the  route  for 
said  road  had  been  definitively  ascertained  by  said  report,  and  a  day 
for  the  commencement  of  the  operations  of  the  Company  thereon  as¬ 
signed,  the  said  President  and  Directors  deputed  engineers,  to  pass 
along  the  route  thus  adopted,  and  wherever  the  character  of  the 
ground  was  such  as  to  leave  but  little  choice  as  to  the  location  of  said 
road,  to  make  an  actual  location  of  the  same  at  once  over  such  ground, 


88 


so  that  the  said  actual  locations  might  serve  as  regulating  points  for 
its  location  over  the  intermediate  sections,  and  secure  the  passage  of 
said  road ;  and  the  said  President  and  Directors  also  deputed  agents 
and  attornies  to  accompany  said  engineers,  who  were  directed  and 
required,  by  the  said  President  and  Directors,  to  take  all  necessary 
or  proper  steps,  to  procure  a  title  to  the  lands  over  which  said  actual 
locations  were  made,  or  to  a  right  of  wray  over  them. 

Your  orator  further  sheweth,  that  under  and  in  conformity  to  the 
requisitions  of  the  said  President  and  Directors,  the  said  engineers 
proceeded  at  once  to  the  actual  location  of  said  road,  over  such  por¬ 
tions  of  the  route  from  the  Point  of  Rocks  aforesaid,  to  the  town  of 
Cumberland  aforesaid  :  of  Which  specifications  of  said  locations, 
which  have  been  adopted  and  confirmed  by  the  said  President  and 
Directors,  and  which  extended  from  the  Point  of  Rocks  inclusive, 
through  Frederick,  Washington,  and  Alleghany  counties,  to  and  over 
the  lands  of  John  Mitchell,  in  Alleghany  county,  lying  immediately 
above  Mitchell’s  rocks,  and  above  the  lands  of  John  Folck,  are  here¬ 
with  exhibited,  marked  A,  B,  C,  D,  E,  F,  G,  H,  I,  K,  L,  M, 
N,  O,  P,  Q,  R,  S,  T,  U,  Y,  W,  X,  Aa,  Bb  ;  that  all  the  said 
locations  were  made  with  a  bona  fide  intention  on  the  part  of  your 
orator,  of  perfecting  its  incipient  title  to  the  lands  included  in  said  lo¬ 
cations,  or  on  the  route  of  said  road  by  purchase,  condemnation  or 
otherwise,  and  of  proceeding  as  speedily  as  possible  to  the  construc¬ 
tion  of  said  road  over  the  same ;  that  acting  with  this  intention,  and 
designing  to  accomplish  this  object,  the  said  President  and  Directors 
therefore  deputed  agents  and  attornies  to  procure  a  title  to  the  same, 
or  a  grant  of  a  right  over  the  same  as  aforesaid  ;  and  that  the  afore¬ 
said  agents  and  attornies  of  the  said  Company,  in  pursuance  of  the 
authority  aforesaid,  and  to  accomplish  the  objects  aforesaid,  have  ob¬ 
tained  from  George  Snouffer,  Patrick  D.  M‘Gill,  James  Hook,  Peter 
Miller,  Philip  Grove,  Peter  Beeler,  David  M‘Minn  and  Charles 
M‘Minn,  Margaret  and  Daniel  Souder,  Susannah  Beeler,  David 
Hahn,  John  D.  Grove,  Grafton  Duvall,  Lloyd  Luckett,  Lingan  Bote- 
ler,  Thomas  Conn,  Patrick  O’Bryone,  John  Blackford,  Adam  My¬ 
ers,  George  Cronise,  Elizabeth  Cronise,  Mathias  Strong,  Jr.,  Re- 
camah  Stevens,  Peter  Palmer,  John  Booth,  Samuel  M.  Hitt,  Emeline 
V.  Corbaley,  Henry  Clagett,  James  B.  Wager,  Gerard  Wager, 
Catherine  Wager,  Anthony  Snyder,  Jacob  T.  Towson,  Frederick 
Dellinger,  George  Snider,  Watkins  James,  Henry  Dellinger,  Mi¬ 
chael  Smith,  Joseph  Smith,  Jacob  Barkman,  Joseph  Charles,  Jr., 
Joseph  Charles,  Sen.  Nicholas  Lowe,  Henry  Wells,  Alexander 
Moore,  Sarah  Jaques,  James  H.  Bowles,  John  Johnson,  Paul  Sum¬ 
mers,  George  Harvie,  Daniel  Rieley,  John  O’Ferrall,  Jacob  Martin, 
James  King,  William  Hughes,  Ludwic  Rodene,  William  Golding, 
Stephen  Fouty,  Walter  M‘Atee,  and  Nathan  Tracy,  relinquishments 
or  agreements  under  hand  and  seal,  binding  themselves,  their  heirs 
and  assigns,  to  grant  to  your  orator  a  right  of  way  for  the  Baltimore 
and  Ohio  Rail-Road,  either  specifically,  according  to  the  said  actual 
locations,  or  generally,  so  as  in  either  case  to  bind  all  their  lands 
lying  within  the  said  actual  locations. 


89 


Your  orator  further  shows,  that  all  its  abovementioned  acts,  in 
locating  said  road,  and  obtaining  and  securing  a  right  of  way  for 
said  road,  over  the  lands  included  in  said  locations,  were  done  by  your 
orator,  in  strict  pursuance  of  the  powers  conferred  upon  it  by  the 
abovementioned  Act  of  Assembly,  and  with  a  view  to  the  accom¬ 
plishment  of  the  objects  for  which  said  company  was  incorporated,  in 
the  best  possible  manner,  and  not  merely  with  the  intent  or  design 
on  the  part  of  your  Orator,  to  impede  or  obstruct  the  Chesapeake  and 
Ohio  Canal,  or  Potomac  Companies,  hereinafter  mentioned,  in  the 
exercise  of  their  respective  powers  ;  and  that  to  carry  into  effect  the 
agreements  and  relinquishments  abovementioned,  which  are  here¬ 
with  exhibited,  marked  1,  2,  3,  4,  M,  N, -  and  which  your 

orator  prays  may  be  taken  as  part  of  this  bill  of  complaint,  the 
said  agents  and  attornies  of  the  said - President  and  Direc¬ 

tors  - — were  about  to  procure  grants  of  said  lands,  or  of  rights 

of  way  over  them,  from  said  grantors,  in  conformity  to  their  above 
exhibited  agreements,  by  deeds  duly  acknowledged  for  record,  or 
to  institute  the  necessary  proceedings  to  enforce  the  specific  per¬ 
formance  of  such  agreements,  where  such  grant  were  refused,  and 
would  have  procured  such  grants,  or  have  instituted  such  proceedings. 

But  now  so  it  is,  may  it  please  your  Honor,  that  after  all  the 
abovementioned  acts  had  been  done  by  the  said  Baltimore  and  Ohio 
Rail  Road  Company,  after  the  abovementioned  actual  location  of  said 
road  had  been  made,  and  the  abovementioned  contracts  or  agree¬ 
ments  with  your  orator,  made,  or  entered  into,  upon  an  appli¬ 
cation  to  Washington  County  Court,  as  a  Court  of  Equity,  made  in 
the  name  and  on  the  behalf  of  the  Chesapeake  and  Ohio  Canal  Com¬ 
pany  and  Potomac  Company,  by  bill  of  complaint,  praying  a  writ 
of  injunction  against  your  orator,  its  attornies,  agents,  and  all  per¬ 
sons  whatsoever,  acting  under  its  authority,  or  on  its  behalf,  to  pre¬ 
vent  them  from  obtaining  a  title  by  purchase,  deed  or  condemnation, 
or  otherwise,  to  any  of  the  lands  lying  within  the  actual  locations 
aforesaid,  or  to  a  l  ight  of  way  over  them,  and  otherwise  to  restrain 
the  lawful  acts  and  proceedings  of  your  orator,  an  injunction,  as 
prayed  for,  was  accordingly  issued  ;  all  of  which  will  more  fully 
appear  from  a  copy  of  the  said  bill  of  complaint,  marked  M,  N,  and 
the  said  writ  of  injunction,  marked  L,  C,  which  arc  herewith  exhi¬ 
bited,  and  which  your  orator  prays  may  be  taken  as  part  of  this  bill 
of  complaint. 

Your  orator  is  advised  and  believes,  that  neither  the  said  Potomac, 
nor  the  said  Chesapeake  and  Ohio  Canal  Companies,  have  any  such 
unquestionable  and  absolute  right  of  election  or  pre-emption  for 
the  route  or  site  of  said  canals,  or  to  all  or  any  of  the  lands  lying  with¬ 
in  the  aforementioned  actual  locations  of  the  said  Baltimore  and  Ohio 
Rail  Road,  as  is  set  forth  in  the  said  bill  of  complaint ;  that,  as  your 
orator  is  credibly  informed  and  believes,  neither  of  the  said  Compa¬ 
nies  had  obtained,  at  the  time  of  issuing  the  said  injunction,  any  title 
or  right,  by  location,  purchase,  deed,  condemnation,  or  otherwise,  to 
the  exclusive  use  and  possession  of  any  of  said  lands  ;  that  the  Poto- 
10 


90 


mac  Company  lias  been  organized  for  more  than  forty  years,  and 
during  all  that  period  has  not  exercised  any  franchise  or  right  of 
election,  as  to  said  lands,  which  it  may  have  derived  under  its  char¬ 
ter,  so  as  to  vest  in  it  an  exclusive  title  to  the  same,  or  to  any  part  of 
them  ;  and  that  at  the  time  when  all  the  abovementioned  locations  and 
agreements  were  made,  the  said  Chesapeake  and  Ohio  Canal  Company 
was  not ,  and  never  had  been,  sufficiently  organized,  so  as  to  be  com¬ 
petent,  under  its  charter ,  to  do  such  ads,  make  such  contracts,  or  ac¬ 
cept  such  gifts  and  relinquishments,  as  were  and  are  necessary  to  vest 
in  the  said  Company,  any  pre-emption,  election,  or  exclusive  right  to 
any  of  the  lands  lying  within  the  aforesaid  actual  locations;  although, 
as  your  orator  has  reason  to  believe,  from  the  allegations  of  said  bill 
of  complaint  of  said  Company,  and  from  other  information  from  cre¬ 
dible  persons,  and  verily  does  believe,  the  said  Chesapeake  and  Ohio 
Canal  Company  is  now  sufficiently  organized  for  said  purposes,  by 
the  election  of  a  President  and  Directors. 

And  your  orator  further  alleges,  that  it  has  good  reason  to  believe, 
and  verily  does  believe,  that  whilst  the  said  Chesapeake  and  Ohio 
Canal,  and  Potomac  Canal  Companies,  were  professing,  in  their  said 
bill  of  complaint,  an  entire  reliance  upon  their  pretended  priority  and 
right  of  election,  as  set  forth  in  said  bill,  unaccompanied  and  unfor¬ 
tified  by  any  location,  purchase,  condemnation,  or  other  act  on  their 
part  necessary  to  secure  and  vest  in  them  such  alleged  priority  and 
right  of  election,  it  was  the  principal,  if  not  the  sole  object,  of  the  said 
companies,  and  their  confederates,  in  obtaining  said  injunction,  to  ob¬ 
struct  and  prevent  your  orator  from  enjoying  the  benefit  of  the  above- 
mentioned  agreements  and  relinquishments,  and  from  perfecting  the 
same  by  deed  or  conveyance,  so  as  to  vest  in  your  orator  a  complete 
legal  title  to  the  lands  to  which  said  agreements  or  relinquishments 
relate,  or  to  a  right  of  way  over  them,  until  the  said  Chesapeake  and 
Ohio  Canal  Company  was  properly  organized,  and  prepared  to  appoint, 
and  might  appoint  agents,  adopt  rules,  make,  or  cause  to  be  made, 
locations  and  contracts,  and  do  and  assent  to  all  other  acts  which 
might  be  necessary  or  proper  to  vest  in  the  said  Chesapeake  and  Ohio 
Canal  Company,  a  title  to  the  very  lands  for  which,  or  a  right  of 
way  over  which,  the  above  agreements  have  been  entered  into  with 
your  orator ;  and  your  orator  has  also  good  reason  to  believe,  and 
verily  does  believe,  that  it  was  the  intent  and  design  of  the  said  com¬ 
panies,  and  their  confederates,  in  applying  for  and  obtaining  said  in¬ 
junction,  to  set  up  their  pretended  priority  for  the  purpose  of  restrain¬ 
ing  your  orator  from  enjoying  the  benefit  of  the  above  agreements, 
and  from  acquiring  a  title  to  the  lands  affected  by  the  same,  until 
the  said  Chesapeake  and  Ohio  Canal  Company  was  competent  and 
prepared  to  acquire,  and  could  acquire,  a  title  to  the  said  lands,  in  the 
very  mode  in  which  your  orator  was  about  to  obtain,  and  would  have, 
obtained  a  title  to  the  same,  but  for  the  interposition  of  the  above- 
mentioned  injunction,  and  might  thus  be  enabled,  if  their  priority  and 
right  of  election  set  forth  and  relied  upon  in  their  said  bill  of  complaint, 
should  fail  them,  to  resort  to  a  title  acquired  by  purchase,  deed,  or 


I 


91 

condemnation,  and  acquired  only  by  fraudulently  restraining  your 
orator,  from  availing  itself  of  the  equitable  title  which  it  derives  un¬ 
der  said  agreements  ;  and,  as  further  evidence  of  such  intention  and 
design,  your  orator  alleges,  that  it  has  been  credibly  informed,  and 
verily  believes,  that  since  the  said  locations  and  agreements  have  been 
made,  and  the  said  injunction  obtained,  and  before,  attempts  have 
been  made  by  one  or  more  agents  of  the  persons  professing  to  act  un¬ 
der  the  authority  of  the  said  Companies,  and  on  their  behalf,  or  for  their 
benefit,  to  dissuade  and  prevent  parties  to  the  said  agreements  from 
performing  their  said  contracts,  and  to  procure  from  them  deeds  f6r, 
or  written  agreements  to  convey,  the  very  lands  affected  by  such 
agreements,  or  lying  within  the  actual  locations  as  aforesaid  ;  and 
that  one  or  more  such  deed  or  agreement,  has  actually  been  obtained 
by  a  certain  Clement  Cox,  or  under  his  directions,  as  the  agent,  or 
professing  to  act  for  said  Companies  ;  from  all  which,  and  many 
other  actings  and  doings  of  the  said  Companies,  or  their  attornies, 
solicitors,  and  agents,  to  obstruct  and  hinder  your  orator  in  the  en¬ 
joyment  of  his  rights,  your  orator  has  reason  to  believe,  and  verily  be¬ 
lieves,  that  the  said  Companies,  or  their  agents,  combining  and  con¬ 
federating  for  the  wrongful  purpose  aforesaid,  will  endeavor  to  pro¬ 
cure,  and  are  endeavoring  to  procure,  deeds  for  the  said  lands,  from 
the  very  parties  to  the  said  agreements,  and  in  violation  of  the  said 
agreements,  or  to  value  and  condemn  them,  or  have  them  valued  and 
condemned,  for  the  use  of  the  Chesapeake  and  Ohio  Canal  Company, 
so  as  to  hold  them  free,  if  possible,  from  any  equitable  interest  in  the 
same  which  your  orator  may  have  acquired  under  said  agreements;  and, 
if  not  proven  ted,  will  procure,  or  value  and  condemn  them  for  their  own 
use,  and  will  endeavor  to  obtain,  and  will  obtain,  possession  of  the  very 
lands  affected  by  such  agreements,  and  will  prevent  your  orator  from 
taking  possession  of  the  same,  and  will  otherwise  obstruct  and 
hinder  your  orator  in  exercising  its  rights  under  said  agreements  over 
the  same.  And  your  orator  further  sheweth,  that  having  a  due  res¬ 
pect  for,  and,  in  all  respects,  obeying  the  said  injunction  issued  out  of 
Washington  County  Court,  it  will  during  the  continuance  of  said  in¬ 
junction,  be  restrained  from  doing  any  act  whatsoever,  to  protect  the 
titles  which  it  derives  under  said  agreements,  or  against  said  Com¬ 
panies,  and  will  during  that  period,  be  left  unprotected  against  the 
unjust  and  unequitable  attempts  of  the  said  Chesapeake  and  Ohio 
Canal  and  Potomac  Companies,  to  take  advantage  of  their  own  wrong 
by  procuring  titles  by  purchase,  location,  or  condemnation,  so  as  to 
give  a  priority  which  they  could  not  have  obtained  but  for  the  said 
injunction ;  that  the  said  injunction  has  been  issued  solely  to  protect 
an  alleged  priority,  or  right  of  election,  in  the  said  Chesapeake  and 
Ohio  Canal  and  Potomac  Companies,  as  set  forth  in  their  bill,  and 
not  requiring  any  acts  on  the  part  of  said  Companies,  such  as  loca¬ 
tion,  purchase,  or  condemnation,  to  vest  or  originate  the  same,  and 
as  the  said  Companies,  in  their  said  bill  of  complaint,  allege,  only 
in  order  to  a  speedy  determination  as  to  the  existence  of  such  priority 
or  right  ;  and  that  the  purposes  and  objects  of  such  injunction  can 


92 


be  accomplished,  and  full  justice  done  to  your  orator  and  to  the  said 
Companies  in  the  premises,  only  by  restraining  the  said  Chesapeake 
and  Ohio  Canal  and  Potomac  Companies,  frohi  doing  any  act  or  acts 
whatsoever,  to  deprive  your  orator  of  the  benefit  of  said  agreements, 
until  the  question  of  priority  of  right,  as  claimed  by  said  Companies, 
shall  have  been  determined  upon  their  said  bill  of  complaint  :  so  that 
if  said  question  should  be  determined  against  the  said  Companies,  upon 
their  said  bill,  your  orator  may  be  remitted  to  all  the  rights  which  it 
pqssessed  or  enjoyed  at  the  time  of  such  injunction  obtained,  unaffected 
by  any  wrongful  acts  in  prejudice  of  the  same,  which  the  said  Com¬ 
panies  may  have  done  under  color  of  said  injunction,  and  in  perver¬ 
sion  or  abuse  of  its  objects  ;  that  then  all  the  alleged  rights  and  pri¬ 
ority  of  the  said  Companies  will  be  saved  and  reserved  to  them  from 
their  alleged  nature,  and  by  the  aid  of  the  abovementioned  injunction 
to  which  your  orator  is  ready  to  pay  all  due  respect,  and  all  the  equi¬ 
ties  of  your  orator  will  also  be  saved  and  reserved  to  it,  so  that,  in 
the  event  of  a  decision,  in  its  favor,  or  upon  the  bill  of  complaint  of 
the  said  companies,  it  will  be  remitted  to  the  full  enjoyment  of  them. 

Wherefore,  and  forasmuch  as  without  restriction  imposed  upon  the 
said  Chesapeake  and  Ohio  Canal  and  Potbiiac  companies  and  their 
agents,  your  orator  may  be  thus  unjustly  deprived  of  or  injured  in 
the  possession  of  its  said  equitable  rights,  and  may  thus  suffer  an  in¬ 
jury  which  cannot  be  repaired  by  any  decision  in  its  favor  upon  the 
bill  of  complaint  of  the  said  Companies  ;  and  forasmuch  as  a  Court 
of  Equity  can  alone  give  relief  in  the  premises,  and  this  Honorable 
Court  having  full  jurisdiction  coextensive  with  the  limits  of  the  State, 
can  alone  give  that  speedy  and  extensive  and  efficient  relief  which  the 
nature  and  urgency  of  the  case  requires  :  To  the  end  therefore,  that 
the  said  Chesapeake  and  Ohio  Canal  Company  and  the  said  Potomac 
Company,  being  Companies  incorporated  and  organized  under  acts 
of  the  Legislature  of  Maryland,  may,  under  their  respective  and  cor¬ 
porate  seals,  full,  true  and  perfect  answer  make  to  all  the  matters 
hereinbefore  set  forth,  and  that  in  the  meantime  the  said  Chesapeake 
and  Ohio  Canal  Company  and  Potomac  Company,  their  agents  or 
attornies,  and  the  agents  or  attornies  of  either  of  them,  and  all  per¬ 
sons  acting  or  professing  to  act  under  their  authority  or  on  their  be¬ 
half,  or  on  behalf  of  either  of  them,  may  be  strictly  prohibited  and 
enjoined  from  making  any  contracts  or  agreements  with,  or  receiving 
or  obtaining  any  deed  or  conveyance  from  any  of  the  abovemen¬ 
tioned  party,  grantors  in  the  above  exhibited  agreements  or  relin¬ 
quishments,  for  any  of  the  lands  of  the  said  party,  grantors,  lying 
within  the  limits  of  the  abovementioned  actual  locations  of  said  Rail 
Road,  or  for  a  right  of  way  over  the  same,  and  from  anywise  ob¬ 
structing  or  preventing  your  orator  from  taking  possession  of  said 
lands,  under  and  in  conformity  to  said  agreements  ;  and  that  the  said 
Chesapeake  and  Ohio  Canal  and  Potomac  Companies,  their  agents 
or  attornies,  or  the  agents  or  attornies  of  either  of  them,  and  all  per¬ 
sons  professing  te  act  under  their  authority,  or  on  their  behalf,  may 
be  strictly  prohibited  and  enjoined,  either  from  issuing  or  causing  to 


93 


be  issued,  or  executing  or  causing  to  be  executed,  any  warrants  for 
summoning  any  Jury  or  Juries,  to  assess  damages  for  the  condemna¬ 
tion  of  the  lands  of  the  above  grantors  lying  within  the  said 
actual  locations  of  said  Rail  Road,  as  hereinbefore  set  forth  ;  and 
that  all  Justices  of  the  Peace  and  Sheriffs  of  the  Counties  of  Freder¬ 
ick,  Washington  and  Alleghany,  may  be  strictly  prohibited  and  en¬ 
joined,  the  one  from  issuing  and  the  other  from  executing  any  such 
warrant  or  warrants,  to  value  and  condemn  any  of  said  lands,  until 
the  right  of  priority  and  election  of  the  said  Chesapeake  and  Ohio 
Canal  and  Potomac  Companies,  as  set  forth  and  claimed  in  the  said 
Bill  of  Complaint,  shall  have  been  fully  acted  upon  and  determined, 
or  until  the  further  order  of  this  Honorable  Court. 

Your  orator  therefore  prays  your  Honor,  that  the  said  Chesapeake 
and  Ohio  Canal  Company,  and  the  said  Potomac  Company,  may  be 
made  defendants  to  this  bill,  and  that  your  Honor  will  grant  unto 
your  orator,  the  State’s  writ  of  subpoena,  directed  to  the  said  Defen¬ 
dants,  and  requiring  them  to  come  in  and  answer  the  premises  under 
their  respective  corporate  seals  ;  and  that  your  Honor  will  also  grant 
unto  your  orator  the  States’  writ  of  injunction,  directed  to  the  said 
•  Chesapeake  and  Ohio  Canal  Company  and  the  Potomac  Company, 
their  agents  and  attornies,  or  the  agents  or  attornies  of  either  of 
them,  and  all  persons  acting  under  their  authority  or  on  their  behalf, 
or  under  the  authority  or  on  the  behalf  of  either  of  them,  and  to  the 
several  Sheriffs  and  Justices  of  the  Peace,  in  and  for  Frederick, 
Washington  and  Alleghany  counties,  strictly  enjoining  and  prohibit¬ 
ing  the  said  Companies  or  either  of  them  ;  and  the  said  agents,  at¬ 
tornies  or  persons,  acting  or  professing  to  act  under  the  authority,  or 
on  the  behalf  of  said  Companies,  or  of  either  of  them,  from  making 
any  contract  or  agreement  with,  or  receiving  or  obtaining  any  deed 
or  conveyance  whatsoever,  from  George  Snouffer,  Patrick  D.  M’Gill 
and  Mary  his  wife,  James  Hook,  Peter  Miller,  Philip  Grove,  Peter 
Beeler,  David  Beeler,  Samuel  Beeler,  Eleanor  Beeler,  Sarah  M’- 
Minn  and  Charles  M’Minn,  Margaret  Souder  and  Daniel  Souder, 
Mary  Beeler,  Susannah  Beeler,  Peter  Beeler,  David  Halen,  John  D. 
Grove,  Grafton  Duvall,  Lloyd  Luckett,  Lingan  Boteler,  Thomas 
Conn,  Patrick  O’Bryone,  John  Blackford,  Adam  Myers,  George 
Cronise,  Elizabeth  Cronise,  Mathias  Strong,  Recainah  Stevens,  Pe¬ 
ter  Palmer,  John  Booth,  Samuel  M.  Hitt,  Peter  Miller,  Emeline  V. 
Corhaley,  Henry  Clagett,  James  B.  Wager,  Gerard  Wager,  Catha¬ 
rine  Wager,  Anthony  Snyder,  Jacob  T.  Towson,  Frederick  Dellin¬ 
ger,  George  Snider,  Watkins  James,  Henry  Dellinger,  Michael 
Smith,  Joseph  Smith,  Jacob  Barkman,  Joseph  Charles,  junior,  Jo¬ 
seph  Charles,  senior,  Nicholas  Lowe,  Henry  Wells,  Alexander 
Moore,  Sarah  Jacques,  James  H.  Bowles,  John  Johnson,  Paul  Sum¬ 
mers,  George  Harvie,  Daniel  ltieley,  John  O’Ferrall,  Jacob  Martin, 
James  King,  William  Hughes,  Ludwick  Rodene,  William  Golding, 
Stephen  Fouty,  Walter  M’Atee  and  Nathan  Tracy,  or  any  of  them, 
for  any  land  or  lands,  or  any  interest  in  any  land  or  lands,  by  them 
or  any  of  them  owned  or  possessed,  and  lying  within  the  limits  of  the 


I 


94 

actual  locations  of  the  Baltimore  and  Ohio  Rail  Road,  as  surveyed 
and  marked  out  by  the  engineers  of  the  Baltimore  and  Ohio  Rail 
Road  Company,  under  the  direction  of  the  President  and  Directors  of 
said  Company,  before  the  tenth  day  of  June,  eighteen  hundred  and 
twenty-eight,  for  the  route  and  site  of  said  Rail  Road  ;  and  also 
from  hindering  or  obstructing  your  orator,  or  its  agents  from  taking 
possession  of  any  of  said  lands,  under  their  said  agreements,  or  using 
them  in  conformity  to  said  agreements ;  and  also  strictly  enjoining 
and  prohibiting  the  said  Companies,  their  agents  and  attornies  as  a- 
foresaid,  from  applying  for  or  causing  to  be  issued  or  executed,  any 
warrant  or  warrants  for  summoning  any  jury  or  juries,  to  assess 
damages  for  the  condemnation  of  any  of  the  said  lands  for  the  use  of 
said  Companies,  or  either  of  them,  for  the  route  and  site  of  said  canal 
or  canals;  and  also  the  said  Justices  of  the  Peace  and  Sheriffs,  the 
one  from  issuing,  and  the  other  from  executing  any  such  warrant  or 
warrants,  to  summon  any  jury  or  juries,  to  value  and  comdemn  any 
of  the  said  lands  for  the  use  of  the  said  Chesapeake  and  Ohio  Canal 
and  Potomac  Companies,  until  the  claim  of  the  said  Chesapeake  and 
Ohio  Canal  and  Potomac  Companies,  to  a  priority  and  right  of  elec¬ 
tion  as  to  all  the  lands  lying  within  the  actual  locations  as  aforesaid 
of  the  Baltimore  and  Ohio  Rail  Road,  as  set  forth  and  relied  upon  in 
their  bill  of  complaint,  filed  against  your  orator  in  Washington 
County  Court,  as  a  Court  of  Equity,  on  the  tenth  day  of  the  instant 
month,  shall  have  been  finally  heard  and  determined  upon,  or  until 
the  further  order  of  this  Honorable  Court,  and  that  your  Honor  will 
grant  unto  your  orator  such  other  and  further  relief  as  your  Honor 
may  deem  proper,  or  the  equity  of  the  case  demands.  And  your 
orator,  &c. 

R.  B.  TANEY, 

WILLIAM  GWYNN, 

J.  H.  B.  LATROBE, 

»6  JOHN  Y.  L.  McMAHON, 

Solicitors  for  Compls. 

Maryland:  Anne  Arundel  County,  to  wit: 

Be  it  remembered,  That  on  this  23d  day  of  June,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  twenty-eight, personally 
appeared  before  me  the  subscriber,  a  Justice  of  the  Peace,  in  and  for 
Anne  Arundel  county  aforesaid,  John  Y.  L.  McMahon,  and  made 
oath  on  the  Holy  Evangelists  of  Almighty  God,  that  he  knows,  or  is 
credibly  informed,  and  very  believes,  that  the  matters  and  things  set 
forth  in  the  above  hill  of  complaint,  are  just  and  true  as  stated,  to 
the  best  of  his  knowledge  and  belief. 

Sworn  to  before  me, 

JOS.  HOLLAND. 

In  Chancery,  2 3d  June ,  1828. 

Ordered ,  That  writs  of  subpoena  and  injunction,  issue  as  prayed  by 
the  aforegoing  bill  of  complaint.  And  it  is  further  ordered,  that  at 


95 


any  lime  alter  the  filing  of  the  answers  of  the  said  defendants,  the 
Court  will  hear  the  motion  to  dissolve  the  said  injunction  :  Provided* 
The  said  defendants  give  to  the  said  plaintiff  ten  days  notice  thereof. 
And  the  Register  is  directed  to  endorse  a  copy  of  this  order  on  the 
writ  of  injunction,  that  it  may  be  served  therewith  on  the  said  de¬ 
fendants.  * 

THEODERICK  BLAND,  Ch’r. 

True  copy  :  Test, 

Ramsay  Waters,  Reg.  Cur.  Can. 


BILL  No.  2. 

To  the  Honorable  Theoiorick  Bland ,  Chancellor  of  Maryland. 

This,  the  bill  of  complaint  of  the  Baltimore  and  Ohio  Rail-road 
Company,  respectfully  showeth  :  That  your  orators  were  duly  incor¬ 
porated  and  organized  under  an  act  of  the  General  Assembly  of 
Maryland,  entitled,  “  an  act  to  incorporate  the  Baltimore  and  Ohio 
Rail-road  Company, 99  passed  at  December  session,  1826;  and  that 
being  by  said  act  invested  with  the  powers  necessary  to  the  construc¬ 
tion  of  a  rail-road,  from  the  city  of  Baltimore  to  the  Ohio  river,  the 
President  and  Directors  of  said  Company  proceeded,  in  exercise  of 
the  powers  conferred  upon  them  by  the  said  act,  to  cause  rcconnois- 
sances  and  surveys  of  the  various  routes  for  said  road  to  be  made, 
with  a  view  to  its  actual  location  and  speedy  construction ;  that  in 
May  last,  upon  the  report  of  the  engineers  employed  to  make  such 
surveys,  &c.  the  said  President  and  Directors  adopted,  as  the  route 
for  said  road  from  Baltimore  to  the  town  of  Cumberland,  what  was 
designated  by  said  engineers  as  the  Southern  route,  to  wit  :  from  the 
city  of  Baltimore  by  tbe  valley  of  the  Patapsco,  and  thence  to  the 
Potomac  river,  striking  the  Potomac  at  the  Point  of  Rocks  at  the 
North-eastern  side  of  the  gap  at  which  the  Potomac  passes  throng'd 
the  Catoctin  mountain,  and  thence  with  the  valley  of  the  said  river, 
with  some  deviations,  to  Williamsport  and  Cumberland.  That  the 
route  for  said  road  being  definitively  ascertained  by  said  report,  the 
subscriptions  obtained  deemed  amply  suilicient  for  its  completion  to 
Cumberland,  and  the  day  fixed  for  the  commencement  of  the  con¬ 
struction  of  said  road,  the  said  President  and  Directors  deputed  engi¬ 
neers  to  pass  along  tbe  said  route,  and  wherever  the  character  of  the 
ground  was  such  as  to  leave  but  little  choice  as  to  the  location  of 
said  road,  or  to  present  hut  one  passage,  to  make,  at  once,  an  actual 
location  of  said  road  over  the  same,  designating  it  by  well  defined 
boundaries,  so  that  said  location  might  serve  as  regulating  points  for 
the  intermediate  sections,  and  might  secure  the  passage  of  the  road  ; 
and  also,  agents  and  attornies  to  procure  for  your  orators  a  title  to 
all  the  lands  included  in  said  actual  locations,  as  to  a  right  of  way 
over  them  for  said  road.  That  tbe  said  engineers  proceeded  to  make 


96 


and  did  make,  an  actual  location  of  said  road  over  such  portions  of 
the  route  from  th6  Point  of  Rocks  aforesaid,  to  the  town  of  Cumber¬ 
land,  actually  surveying  and  marking  out  with  boundaries  the  site  of 
said  road,  particular  descriptions  of  most  of  which  said  locations  are 
contained  in  certain  specifications,  exhibited  with  a  bill  of  complaint 
of  your  orators,  against  the  Chesapeake  and  Ohio  Canal  and  the 
Potomac  Companies,  filed  in  this  Honorable  Court,  on  the  23d  day 
of  June  inst.,  and  marked  with  the  letters  from  A  to  Bb,  inclusive, 
to  which  your  orators  beg  leave  to  refer,  as  part  of  this  bill.  Your 
orators  further  show,  that  they  have  obtained  a  title  to  the  lands  in¬ 
cluded  in  said  locations,  or  to  a  right  of  way  over  them  where  it  was 
practicable,  but  where  they  were  unable  to  agree  with  the  owner  or 
owners,  or  from  other  causes,  it  became  necessary,  they,  by  their 
said  attorneys,  caused  warrants  to  be  issued,  to  value  and  condemn 
such  lands  for  their  use,  agreeably  to  the  directions  of  the  fifteenth 
section  of  their  act  of  incorporation  above  mentioned.  That  accord¬ 
ingly,  several  warrants  were  issued  to  value  the  lands  of  John 
M‘Pherson,  John  Brien,  the  representatives  of  John  Jones  Hays, 
Joseph  Beeler,  Catherine  Maybury,  Margaret  Snyder  and  John 
Stevens,  which  said  warrants  are  herewith  exhibited,  marked  A,  B, 
C,  D,  E,  F,  G,  H,  I,  and  which  your  orators  pray  may  be  taken  as 
part  of  this  bill  of  complaint.  That  actual  locations  of  said  road,  sur¬ 
veying  and  actually  defining  the  site  of  the  same,  were  made  over 
the  following  lands,  to  wit,  over  certain  lands  lying  and  being  in 
Washington  county,  Maryland,  and  in  part  owned  by  Sophia  Otho 
and  Josiah  Smith,  who  are  minors,  and  Michael  Barkman  and  his 
wife,  who  are  non-residents  of  the  State,  which  said  location  is  par¬ 
ticularly  described  in  exhibit  R,  specification  third,  of  the  specifica¬ 
tions  above  referred  to;  also,  over  certain  lands  being  in  said  county, 
and  owned  by  the  widow  and  heirs  of  the  late  John  Oliver,  the  said 
heirs  being  minors,  and  the  said  agents  unable  to  agree  with  said 
widow  for  the  purchase  of  the  same,  which  said  location  is  particu¬ 
larly  described  in  exhibit  R,  specification  twelfth  of  said  specifica¬ 
tions  ;  also,  over  certain  lands  being  in  said  county,  and  owned  by 
Samuel  llidout,  who  then  was  and  is  a  non-resident  as  to  said  county, 
the  said  location  being  particularly  described  in  the  specification 
marked  U,  Y,  and  W,  above  referred  to;  also,  over  certain  lands 
being  in  Alleghany  county,  Maryland,  and  owned  by  a  certain  Henry 
Fauver,  who  then  was,  and  still  is,  a  non-resident,  both  as  to  said 
county  and  said  State,  which  said  location  is  particularly  described 
in  specification  X,  of  the  specifications  above  referred  to  ;  also,  over 
certain  lands  being  in  Alleghany  county  aforesaid,  and  owned  by  the 
widow  and  heirs  of  Van  Zindla,  who  were  and  are  non-residents  of 
said  county  and  State,  which  said  location  is  particularly  described 
in  specification  A  a,  of  said  specifications  ;  also  over  certain  lands 
being  in  Alleghany  county  aforesaid,  and  owned  by  a  certain  John 
Mitchell,  who  did  not  then,  and  does  not  now,  reside  within  the  State 
of  Maryland,  which  said  location  is  particularly  described  in  speci¬ 
fication  Bb,  of  said  specifications.  Your  orators  also  show,  that  the 


97 


above-mentioned  locations,  include  all  the  lands  of  the  aforesaid  per¬ 
sons,  lying  and  being  within  the  limits  of  the  actual  locations  of  said 
Baltimore  and  Ohio  Rail-road,  made  as  aforesaid,  and  herewith  ex¬ 
hibited  ;  that  the  said  warrants  were  issued,  and  the  said  locations 
made  in  conformity  to  the  directions  of  the  said  act  incorporating  your 
orators,  and  in  strict  pursuance  of  the  powers  conferred  by  the  same  ; 
and  that  they  were  issued  or  made  by  your  orators,  with  a  view  to 
the  accomplishment  of  the  objects  for  which  your  orators  were  incor¬ 
porated,  in  the  best  possible  manner,  in  due  order,  and  as  necessary 
to  be  done  to  give  your  orators  the  full  benefit  of  the  aforementioned 
Southern  route,  and  not  with  any  intent  or  design  merely  to  impede  or 
obstruct  the  Chesapeake  and  Ohio  Canal  Company  and  the  Potomac 
Company,  hereinafter  mentioned,  in  exercising  any  powers  vested  in 
them  by  their  respective  acts  of  incorporation  ;  that  all  the  said  war¬ 
rants  were  issued  with  a  bona  fide  design  to  perfect  the  incipient  title 
under  the  same,  by  condemnation  according  to  their  tenor;  and  that  all 
the  abovementioned  locations  were  made  actually  to  determine  the  site 
of  said  road,  and  in  order  to  the  speedy  exercise  by  your  orators  of 
their  power  to  purchase  or  condemn  the  lands  lying  within  said  actual 
locations,  and  that  the  titles  thus  commenced  would  have  been  per¬ 
fected  by  condemnation  or  otherwise,  as  your  orators  are  informed 
by  their  agents,  and  verily  believe,  so  as  to  exclude  any  title  to  the 
same,  which  the  said  Companies  or  either  of  them  could  possibly  ac¬ 
quire  by  mere  location  and  purchase,  or  condemnation,  but  for  the 
injunction  hereinafter  mentioned.  But  now  so  it  is,  may  it  please 
your  Honor ,  that  after  all  the  abovementioned  acts  had  been  done  by 
or  under  the  direction  of  the  said  President  and  Directors  of  the  Bal¬ 
timore  and  Ohio  Rail  Road  Company ;  after  the  abovementioned  war¬ 
rants  had  been  issued,  and  the  abovementioned  actual  locations  of 
said  road  had  been  made,  upon  an  application  to  Washington  County 
Couyt,  as  a  Court  of  Equity,  made  in  the  name  and  on  the  behalf  of 
the  Chesapeake  and  Ohio  Canal  Company  and  Potomac  Company, 
by  bill  of  Complaint  praying  a  writ  of  injunction  against  your  ora¬ 
tors,  its  attornies,  agents,  and  all  persons  whatsoever,  acting  under 
its  authority,  or  on  its  behalf,  to  prevent  them  from  obtaining  a  title 
by  purchase,  deed,  condemnation,  or  otherwise,  to  any  of  the  lands 
lying  within  the  actual  locations  aforesaid,  or  to  a  right  of  way  over 
them,  and  otherwise  to  restrain  the  lawful  acts  and  proceedings  of 
your  orators,  an  injunction  as  prayed  for,  was  accordingly  issued  ; 
all  of  which,  will  more  fully  appear  from  a  copy  of  the  said  bill  of 
complaint,  marked  M  M,  and  of  said  writ  of  injunction  marked  L 
L,  exhibited  with  a  bill  of  complaint  of  your  orators  against  the 
Chesapeake  and  Ohio  Canal  Company  and  Potomac  Company,  filed 
in  this  Honorable  Court  on  the  twenty-third  day  of  the  present 
month,  to  which  your  orators  beg  leave  to  refer  as  part  of  this  bill  of 
complaint.  Your  orators  are  advised  and  believe,  that  neither  the 
said  Potomac  Company,  nor  the  said  Chesapeake  and  Ohio  Canal 
Company,  have  any  such  unquestionable  and  absolute  right  of  pre¬ 
emption  and  election  fo  rthe  route  or  site  of  said  canals,  as  to  all  or 
11 


98 


any  of  the  lands  lying  within  the  aforementioned  actual  locations  of 
said  rail  road,  as  is  set  forth  in  said  bill  of  complaint ;  that  as  your 
orators  are  credibly  informed,  and  verily  believe,  neither  of  the  said 
Companies  had  obtained,  at  the  time  of  issuing  the  said  injunction, 
any  title  or  right  by  location,  deed,  purchase,  condemnation  or  other¬ 
wise,  to  the  exclusive  use  and  possession  of  any  of  said  lands ;  that 
the  Potomac  Company  has  been  organized  for  more  than  forty  years, " 
and  during  all  that  period  has  not  exercised  any  franchise  or  right  of 
election  as  to  said  lands,  which  it  may  have  derived  under  its  char¬ 
ter,  so  as  to  vest  in  it  an  exclusive  title  to  the  same  or  to  any  part  of 
them  ;  and  that  at  the  time  when  all  the  abovementioned  locations 
and  agreements  were  made,  the  said  Chesapeake  and  Ohio  Canal 
Company  was  not,  and  never  had  been  sufficiently  organized,  so  as  to 
be  competent  under  its  charter,  to  do  such  acts,  make  such  contracts, 
or  accept  such  gifts,  grants  and  relinquishments,  as  were  and  are  ne¬ 
cessary  to  vest  in  said  Company  any  pre-emption,  election,  or  exclu¬ 
sive  right  to  any  of  the  lands  lying  within  the  aforesaid  actual  locations, 
although  as  your  orators  have  reason  to  believe,  from  the  allegations 
of  said  bill  of  complaint  of  said  Company,  and  for  other  information 
from  credible  persons,  the  said  Cheapeake  and  Ohio  Canal  Company 
is  now  sufficiently  organized  for  such  purposes,  by  the  election  of  a 
President  and  Directors.  And  your  orators  further  allege,  that  they 
have  good  reason  to  believe,  and  verily  do  believe,  that  whilst  the 
said  Chesapeake  and  Ohio  Canal  and  Potomac  Companies  were  pro¬ 
fessing  in  their  said  bill  of  complaint  an  entire  reliance  upon  their 
pretended  priority  and  right  of  election,  as  set  forth  in  their  said  bill, 
unfortified  by  any  location,  purchase,  condemnation  or  other  act  on 
their  part,  as  necssary  to  vest  in  them,  and  secure  to  them,  such 
alleged  priority  and  right  of  election,  it  was  the  principal,  if  not  the 
sole  design  of  the  said  Companies  and  their  confederates,  in  obtain¬ 
ing  the  said  injunction,  to  obstruct  and  prevent  your  oratorsffrom 
enjoying  the  benefit  of  the  abovementioned  purchases,  warrants,  and 
locations,  and  from  perfecting  their  incipient  titles  emder  these,  to  the 
lands  included  in  said  locations,  or  to  a  right  of  way  over  them,  until 
the  said  Chesapeake  and  Ohio  Canal  Company  was  properly  organi¬ 
zed,  and  was  capable  of  doing  or  assenting  to  all  acts  which  might 
he  necessary  or  proper  to  vest  in  the  said  Chesapeake  and  Ohio  Canal 
Company,  a  title  to  the  very  lands  affected  by  such  warrants  or  loca¬ 
tions,  or  to  a  right  of  way  over  them.  And  your  orators  have  good 
reason  to  believe,  and  verily  do  believe,  that  it  was  the  intent  and 
design  of  the  said  Companies  and  their  confederates,  in  applying  for, 
and  obtaining  said  injunction,  to  set  up  their  pretended  priority  for 
the  purpose  of  restraining  your  orators  from  enjoying  the  benefit  of 
the  abovementioned  warrants,  locations,  and  purchases,  until  said 
Chesapeake  and  Ohio  Canal  Company  was  competent  to  acquire, 
and  could  acquire,  a  title  to  said  lands,  in  the  very  mode  in  which  your 
orators  were  about  to  obtain  it,  and  would  have  obtained  it,  but  for 
the  abovementioned  injunction  ;  and  might  thus,  if  their  alleged  prio¬ 
rity  should  fail  them,  resort  to  a  title  acquired  by  location  and  pur- 


99 

chase,  or  condemnation,  and  acquired  only  by  fraudulently  depriving 
your  orators  of  the  priority  they  had  obtained  by  said  purchases, 
“warrants,  and  locations,  at  the  time  when  said  injunction  was  issued  ; 
that  if  any  such  priority  existed  as  to  the  said  Companies,  any  pro¬ 
ceeding  by  injunction  to  restrain  your  orators  was  wholly  unneces¬ 
sary  to  preserve  and  have  such  priority,  and  can  only  be  referred  to  • 
the  intent  and  design  abovementioned  ;  and  as  further  evidence,  your 
orators  allege,  that  they  have  been  credibly  informed,  and  verily  be¬ 
lieve,  that  since  the  said  locations  and  purchases  have  been  made, 
and  the  said  injunction  obtained,  and  before  attempts  have  been  made 
by  one  or  more  agents  of  the  said  Chesapeake  and  Ohio  Canal  and 
Potomac  Companies,  or  persons  professing  to  act  under  their  authori¬ 
ty,  or  on  their  behalf,  and  for  their  benefit,  to  obtain  titles  to  the  very 
lands  lying  within  said  actual  locations,  and  to  procure  from  persons 
owning  lands  within  said  locations,  a  title  to  the  same,  or  a  right  of 
way  over  them  ;  and  that  one  or  more  such  deeds  has  been  obtained 
by  a  certain  Clement  Cox,  or  under  his  directions,  as  the  agent  of 
said  Company  ;  from  all  which  actings  and  doings  of  the  said  Com¬ 
panies  and  their  agents,  your  orators  have  reason  to  believe,  and  do 
believe,  that  the  said  Companies  and  their  agents,  combining  for  the 
wrongful  purposes  aforesaid,  will  endeavour  to  deprive  your  orators 
of  all  the  benefits  of  said  purchases,  warrants  and  locations,  and  will 
purchase  or  have  the  said  lands  valued  and  condemned  for  the  use  of 
the  said  Chesapeake  and  Ohio  Canal  Company,  and  will  endeavour 
to  obtain,  and  will  obtain  possession  of  the  said  lands,  and  will  pre¬ 
vent  your  orators  from  taking  possession  of  the  same,  and  will  other¬ 
wise  hinder  or  obstruct  your  orators  in  the  exercise  of  the  rights  they 
have  obtained  under  said  warrants  and  locations. 

Your  orators  further  show,  that  under  their  act  of  incorporation 
abovementioned,  the  location  of  the  said  Ilail-Road  as  they  are  advis¬ 
ed,  is  a  previous  act  necessary  on  the  part  of  your  orators,  to  ascer¬ 
tain  the  site  of  said  road,  and  to  determine  what  land  will  be  wanted 
for  its  construction, .and  is  therefore  necessary  to  vest  in  your  orators 
the  right  to  purchase  or  condemn  lands,  under  the  fifteenth  section  of 
said  act,  and  that  the  said  locations  therefore  constitute  the  inception 
of  a  title  to  the  lands  included  within  them,  for  the  purpose  of  con¬ 
structing  said  Rail  Road ;  that  where  the  abovementioned  locations 
have  been  made  over  lands  which  have  not  been  purchased,  and  to 
condemn  which  no  warrants  were  actually  issued,  before  said  injunc¬ 
tion  was  issued,  warrants  were  prepared,  or  would  have  been  prepared 
’and  issued,  as  your  orators  ar$  informed  by  their  agents,  and  verily 
believe  in  all  of  said  cases,  before  the  twentieth  day  of  the  present 
month,  so  that  before  the  said  Chesapeake  and  Ohio  Canal  Company 
could  have  been  organized,  and  competent  to  make  locations,  purchases, 
and  condemnations,  and  before  the  said  Potomac  Company,  if  it  yet 
has  any  such  rights,  could  have  exercised  similar  powers  as  to  said 
lands  ;  your  orators  would  have  acquired  a  complete  title  to  the  lands 
included  in  the  aforesaid  locations,  by  condemnation,  or  an  unques¬ 
tionable  incipient  title  to  the  same,  by  the  issuing  of  warrants,  to 


value  them  for  their  use,  under  their  aforesaid  act  of  incorporation, 
but  for  the  issuing  of  the  injunction  aforesaid  ;  which,  as  your  orators 
allege,  was  designed  to  defeat  the  priority  thus  acquired. 

Your  orators  further  show,  that  having  a  due  respect  for,  and  in  alt 
respects  obeying  the  said  injunction  issued  out  of  Washington  County 
Court,  they  will,  by  the  said  injunction,  be  deprived  of  all  the  bene¬ 
fits  of  said  locations  and  warrants,  during  its  pendency,  and  will,  in 
some  instance,  but  for  the  interposition  of  this  Court,  be  unable  to 
regain  the  priority  which  they  had  thus  acquired,  and  which  they  en¬ 
joyed  when  said  injunction  was  obtained,  that  the  at^ovementioned 
warrants  were  all  necessarily  made  returnable  at  a  day  which  is  now 
past,  and  occuring  after  the  issuing  of  said  injunction,  by  the  opera¬ 
tion  of  which,  your  orators  were  prevented  from  having  the  Same  exe¬ 
cuted,  in  conformity  to  the  directions  of  the  fifteenth  section  of  the 
act  incorporating  your  orators ;  and  that  the  said  warrants  cannot 
now,  because  of  the  effect  of  the  injunction,  ever  be  executed  in  con¬ 
formity  to  the  directions  of  the  said  act ;  and  your  orators  have  thus 
been  deprived  of  all  the  priority  obtained  by  the  issuing  of  them,  as 
they  have  reason  to  fear,  and  that  during  the  continuance  of  said  in¬ 
junction,  your  orators  will  be  left  open  to,  and  unprotected  against 
the  unjust  and  inequitable  attempts  of  the  said  Companies  and  their 
agents,  to  take  advantage  of  their  own  wrong  by  procuring  titles,  by 
purchase,  location,  and  condemnation,  so  as  to  give  them  a  priority 
.  which  they  could  not  have  obtained  but  for  said  injunction  \  that  the 
said  injunction  has  been  issued  solely  upon  the  allegation  of  a  prior¬ 
ity,  or  right  of  election  in  the  said  Chesapeake  and  Ohio  Canal  and 
Potomac  Companies,  as  set  forth  in  their  said  bill  of  complaint,  and 
not  requiring  any  act  on  the  part  of  said  Companies,  such  as  location 
and  purchase,  or  condemnation  to  vest  or  originate  the  same ;  and,  as 
the  said  Companies  in  their  said  bill  of  complaint  allege,  only  in  order 
to  a  speedy  determination  as  to  the  exercise  of  such  priority  of  right ; 
and  that  the  purposes  and  objects  of  such  injunction  can  be  accom¬ 
plished,  and  full  justice  done  to  your  orators  and  to  the  said  Com¬ 
panies  in  the  premises,  only  by  restraining  the  said  Chesapeake  and 
Ohio  Canal  and  Potomac  Companies  from  doing  any  act  or  acts 
whatsoever,  to  deprive  your  orators  of  the  priority  they  had  acquired 
by  said  locations,  and  the  issuing  of  said  warrants,  until  the  claim  of 
right  set  up  by  the  said  Companies,  shall  have  been  finally  determin¬ 
ed  upon,  so  that  if  said  claim  should  not  be  sustained,  your  orators 
may  be  remitted  to  all  the  rights  which  they  possessed,  or  enjoyed  at 
the  time  of  said  injunction  obtained,  unaffected  by  any  wrongful  acts 
in  prejudice  of  the  same,  which  the  said  Companies,  or  either  of  them 
may  have  done  under  color  of  said  injunction,  and  in  perversion  or 
abuse  of  its  objects.;  that  if  not  thus  restrained,  the  benefits  of  said 
warrants  and  locations  will  be  lost  to  your  orators,  or  your  orators 
driven  to  remedial  proceedings  in  Chancery  to  regain  the  same,  whilst 
by  the  preventive  proceeding  by  injunction,  all  the  alleged  rights  and 
priority  of  the  said  Companies,  will,  from  their  very  nature,  and  by 
the  aid  of  the  abovemontioned  injunction,  to  which  your  orators  arc 


101 


ready  to  pay  all  due  respect,  be  saved  and  reserved  to  them ;  and  at 
the  same  time,  all  the  priorities  of  your  orators  acquired  by  said  war¬ 
rants  and  locations,  will  also  be  preserved  and  protected  against  any 
intermediate  wrongful  acts  on  the  part  of  said  Companies,  so  that  in 
the  event  of  a  decision  in  favor  of  your  orators,  upon  the  hill  of  com¬ 
plaint,  of  the  said  Companies,  your  orators  will  he  remitted  to  the 
full  enjoyment  of  them  as  they  existed  when  said  injunction  was  ob¬ 
tained. 

Wherefore,  and  forasmuch,  as  without  such  restriction  imposed  up¬ 
on  the  said  Chesapeake  and  Ohio  Canal  and  Potomac  Companies, 
and  their  agents,  &c.  your  orators  may  he  unjustly  deprived  of  the 
priorities  as  to  said  lands  which  they  had  acquired,  or  were  about 
to  acquire,  and  would  have  acquired,  but  for  said  injunction,  and  may 
thus  suffer  an  injury  which  cannot  be  repaid  by  any  decision  in  their 
favor  upon  the  hill  of  complaint  of  the  said  Companies,  and  foras¬ 
much  as  a  court  of  equity  can  alone  give  relief  in  the  premises,  and 
this  Honorable  Court  having  full  jurisdiction,  co-extensive  with  the 
limits  of  the  State,  can  alone  give  that  speedy,  extensive,  and  effi¬ 
cient  relief  which  the  nature  and  urgency  of  the  case  require.  To 
the  end  therefore ,  that  the  said  Chesapeake  and  Ohio  Canal  Company 
and  Potomac  Company,  being  Companies  incorporated  and  organiz¬ 
ed  under  acts  of  the  Legislature  of  Maryland,  may  full,  true  and 
perfect  answer  make  to  all  the  matters  and  things  set  forth  in  the 
above  bill  of  complaint;  and  that  the  said  Chesapeake  and  Ohio  Ca¬ 
nal  Company,  the  said  Potomac  Company,  their  agents  or  attornies, 
or  the  agents  and  attornies  of  either  of  them,  and  all  persons  acting, 
or  professing  to  act  under  their  authority,  or  on  their  behalf,  or  under 
•the  authority,  or  on  the  behalf  of  either  of  them,  may  be  strictly  pro¬ 
hibited  and  enjoined  from  making  any  contract  or  agreement  with,  or 
receiving  any  deed  or  conveyance  from  any  of  the  above  named 
owners  of  said  lands,  for  said  lands,  or  any  interest  whatever  of  the 
said  persons  in  the  same ;  and  from  causing  to  be  issued  or  executed, 
any  warrant  or  warrants,  to  summon  any  jury  or  juries  to  value  the 
same  for  the  use  of  the  said  Companies,  or  of  either  of  them  ;  and 
from  preventing  your  orators  from  taking  possession  of  the  same,  and 
also  that  the  several  Sheriffs  and  Justices  of  the  Peace,  in  and  for 
Frederick,  Washington,  and  Alleghany  counties,  may  be  strictly  pro¬ 
hibited  and  enjoined,  the  latter  from  issuing,  and  the  former  from  exe¬ 
cuting  any  such  warrant  or  warrants,  for  any  of  the  said  lands  ;  your 
orators  pray  your  Honor,  that  the  said  Chesapeake  an<]  Ohio  Canal 
Company,  and  the  said  Potomac  Company,  may  be  made  defendants 
to  this  bill,  and  that  your  Honor  will  grant  unto  your  orators  the 
State’s  writ  of  subpoena  directed  to  the  said  defendants,  and  requiring 
them  to  come  in  and  answer  the  premises  under  their  respective  cor¬ 
porate  seals ;  and  that  your  Honor  will  also  grant  unto  your  orators 
the  Stale’s  writ  of  injunction,  directed  to  the  said  Chesapeake  and 
Ohio  Canal  Company,  the  said  Potomac  Company,  their  agents  and 
attornies,  and  the  agents  and  attornies  of  each  of  them,  and  to  all 
persons  acting,  or  professing  to  act  under  the  authority  or  on  the  be- 


102 


half  of  said  Companies,  or  of  either  of  them,  strictly  enjoining  and 
prohibiting  the  said  Companies,  the  said  agents,  attornies,  and  per¬ 
sons  acting,  or  professing  to  act  under  the  authority  or  on  the  behalf 
of  them,  or  either  of  them,  from  making  any  contract  or  agreement 
with,  or  receiving  any  deed  or  conveyance  from  John  MOPherson, 
John  Brien,  the  representatives  of  John  Jones  Hays,  Joseph  Beeler, 
Catharine  Maybury,  Margaret  Snyder,  John  Stevens,  Sophia  Smith, 
Otho  Smith,  Josiah  Smith,  Michael  Barkman  and  his  wife,  the  widow 
or  children  and  heirs  at  law  of  the  late  John  Oliver,  of  Hancock, 
Samuel  Ridout,  Henry  Fawver,  the  widow  or  heirs  at  law  of  Van 
Zandt,  and  John  Mitchell,  for  any  lands  or  any  interest  in  lands 
owned  or  possessed  by  them,  and  lying  within  the  limits  of  the  actual 
location  of  the  Baltimore  and  Ohio  Rail-Road,  as  marked  out  and 
surveyed  for  the  route  and  site  of  said  road,  by  the  engineers  of  said 
Baltimore  and  Ohio  Rail-Road  Company,  under  the  direction  of  the 
President  and  Directors  thereof,  before  the  10th  day  of  June,  1828, 
and  herewith  exhibited  ;  and  also  from  causing  to  be  issued  or  exe¬ 
cuted,  any  warrant  or  warrants,  to  summon  any  jury  or  juries,  to 
value  the  same  for  the  use  of  said  Companies,  or  of  either  of  them, 
and  from  obstructing  or  preventing  your  orators  from  taking  posses¬ 
sion  of  the  same ;  and  also  the  said  Justices  and  Sheriffs,  the  former 
from  issuing,  and  the  latter  from  executing  any  warrant  or  warrants 
as  aforesaid,  until  the  claim  of  the  said  Chesapeake  and  Ohio  Canal 
and  Potomac  Companies,  to  a  priority  and  right  of  election  to  all 
said  lands,  as  set  forth  in  the  bill  of  complaint,  filed  against  your 
orators,  in  Washington  County  Court  as  a  court  of  equity,  on  the 
tenth  day  of  the  present  month,  shall  have  been  finally  heard  and  de¬ 
termined,  or  until  the  further  order  of  this  Honorable  Court;  and. 
that  your  Honor  will  grant  unto  your  orators  such  other  and  further 
relief,  as  the  equity  of  their  case  may  require. 

R.  B.  TANEY, 

WILLIAM  GWYNN. 

J.  H.  B.  LATROBE, 

JOHN  V.  L.  McMAHON, 

Solicitors  for  Compt . 

Maryland :  Jlnne  Arundel  County ,  to  wit : 

-  # 

Be  it  remembered,  That  on  this  24th  day  of  June,  in  the  year 
of  our  Lord,  one  thousand  eight  hundred  and  twenty-eight,  personally 
appeared  before  me,  the  subscriber,  a  Justice  of  the  Peace  in  and  for 
rsaid  county,  John  Y.  L.  McMahon,  and  made  oath  on  theHoly  Evan¬ 
gelists  of  Almighty  God,  that  he  knows,  or  is  credibly  informed,  and 
verily  believes,  that  the  matters  and  things  set  forth  in  the  above  bill 
of  complaint,  are  just  and  true  as  stated,  to  the  best  of  his  knowledge. 

Sworn  to  before  me, 

JOS.  HOLLAND. 


108 


In  Chancery,  24th  June,  1828. 

Ordered ,  That  writs  of  subpoena  and  injunction,  issue  as  prayed 
by  the  aforegoing- bill  of  complaint.  And  it  is  further  ordered,  that 
at  any  time  after  the  said  defendants  have  filed  their  answers,  the 
Court  will  hear  a  motion  to  dissolve  the  said  injunction  :  Provided , 
the  said  defendants  give  to  the  said  plaintiffs  ten  days’  notice  thereof. 
And  the  Register  is  directed  to  endorse  a  copy  of  this  order  on  the 
said  writ  of  injunction,  that  it  may  be  served  therewith  on  the  said 
defendants. 

THEODORICK  BLAND,  Chancellor . 

True  copy  :  Test, 

Ramsay  Waters,  Reg .  Cur.  Can. 


BILL  No.  3. 

To  the  Honorable  Theodorick  Bland,  Chancellor  of  Maryland. 

This  the  Bill  of  Complaint  of  the  Baltimore  and  Ohio  Rail  Road 
Company,  respectfully  sheweth  :  That  your  orators  were  duly  incor¬ 
porated  and  organized  under  an  Act  of  the  General  Assembly  of  Ma¬ 
ryland,  entitled  an  Act  to  incorporate  the  Baltimore  and  Ohio  Rail 
Road  Company,  passed  at  December  session,  eighteen  hundred  and 
twenty-six,  and  clothed  with  all  the  powers  necessary  to  the  construc¬ 
tion  of  a  Rail  Road  from  the  city  of  Baltimore,  to  the  Ohio  River  ; 
and  that  in  exercise  of  the  powers  conferred  by  said  act,  the  President 
and  Directors  of  said  Company,  caused  reconnoissances  and  surveys 
of  the  various  routes  for  said  road,  to  be  made  by  the  engineers  of 
said  Company,  who  by  their  report  in  May  last,  recommended  the 
adoption  of  the  Southern  route,  to  wit,  from  Baltimore  by  the  Pa- 
tapsco  valley  to  the  Potomac  River,  striking  the  said  river  at  the 
Point  of  Rocks,  and  thence,  with  the  valley  of  the  Potomac  with  in¬ 
considerable  deviations,  to  Williamsport  and  Cumberland  ;  that  the 
said  route  being  thus  adopted,  and  the  day  for  the  commencement  of 
the  work  being  assigned,  the  said  President  and  Directors  deputed 
engineers  to  go  along  said  route,  who  were  by  them  instructed,  wher¬ 
ever  the  character  of  the  ground  was  such  as  to  leave  but  little  choice 
as  to  the  location  of  said  road,  or  to  present  but  one  passage  for  it, 
to  make  at  once  an  actual  location  of  said  road  over  the  same,  desig¬ 
nating  it  by  well  defined  boundaries;  and  the  said  President  and  Di¬ 
rectors  also  deputed  agents  to  procure  a  title  to  the  lands  included  in 
said  actual  locations,  or  to  a  right  of  way  over  them,  that  in  pursu¬ 
ance  of  this  authority,  the  said  engineers  made  actual  locations  over 
such  portions  of  the  said  route,  from  the  Point  of  Rocks  to  the  town 
of  Cumberland  ;  that  a  title  to  the  lands,  included  in  said  actual  lo¬ 
cations,  or  to  a  right  of  way  over  them  for  said  road,  was  obtained  in 
many  instances;  that  warrants  to  summon  juries  to  value  the  same, 
for  the  use  of  your  orators,  were  issued  in  others;  and  that  the  follow- 


104 


ing  actual  locations  of  said  road,  were  made  over  certain  other  lands, 
witli  a  view  to  their  purchase  or  condemnation,  for  the  use  of  your 
orators,  to  wit:  over  certain  lands  lying  and  being  in  Alleghany 
county,  and  owned  by  a  certain  John  Mitchell,  who  then  was,  and 
still  is  not  a  resident  of  the  State  of  Maryland,  which  said  locations, 
are  particularly  described,  in  the  specifications  herewith  exhibited, 
marked  A,  B,  C,  D,-— also,  over  certain  lands,  being  in  said  county, 
and  owned  by  the  children  and  heirs  at  law,  of  the  late  Jacob  Fouty, 
several  of  w  hom  are  minors,  and  the  residue  of  whom,  the  agents  of 
your  orators,  were  unable  to  agree  with,  for  the  purchase  of  said 
lands,  which  said  locations  are  particularly  described,  in  the  specifi¬ 
cations  herewith  exhibited,  marked  E  and  F  ;  also  over  certain  lands 
lying  and  being  in  said  county,  and  owned  by  the  widow  and  heirs  at 
law  of  the  late  John  O’Neill,  who  then  did  not  and  still  do  not  re¬ 
side  in  Alleghany  county ;  which  said  location,  is  particularly  descri¬ 
bed,  in  the  specification  herewith  exhibited,  marked  C,  also  over  cer¬ 
tain  lands,  being  in  the  county  aforesaid,  and  owned  by  Simon  Taylor, 
Michael  C.  Sprigg  and  Luther  Martin  Cresap,  and  Mary  Cresap, 
of  whom,  Luther  Martin  Cresap,  owner  of  part  of  the  lands  included 
in  said  locations,  is  a  minor,  and  Mary  Cresap  has  executed  a  deed 
to  your  orators,  for  her  interest  in  the  same,  which  said  location  is 
particularly  described  in  the  specifications  herewith  exhibited,  mark¬ 
ed  H ;  also  over  certain  lands,  being  in  said  county,  owned  by  the 
Cumberland  Bank,  of  Alleghany,  the  title  to  the  same,  being  vested 
in  commissioners,  a  majority  of  whom,  (who  alone  are  competent  to 
grant  a  title  to  the  same)  reside  out  of  said  county,  which  said  loca¬ 
tion  is  particularly  described  in  specification  J,  herewith  exhibited  ; 
all  of  which  said  specifications  your  orators  pray,  may  be  taken  as 
part  of  this  bill :  your  orators  further  shew,  that  all  the  said  locations 
were  made  in  pursuance  of  the  powers  conferred  upon  them  by  their 
Charter,  with  a  view  to  the  accomplishment  of  the  object  of  their 
incorporation,  in  the  best  possible  design,  and  to  the  speedy  com¬ 
mencement  and  construction  of  said  road  upon  the  same,  and  not  with 
the  mere  design  of  impeding  or  embarrassing  the  operation  of  any 
other^Company,  and  that  all  the  said  locations  have  been  adopted  and 
confirmed  by  the  said  President  and  Directors  ;  and  that  the  said  ac¬ 
tual  locations,  together  with  the  location  over  the  lands  of  John 
Mitchell,  exhibited  with  the  bill  of  complaint  of  your  orators  against 
the  Chesapeake  and  Ohio  Canal  and  Potomac  Companies,  filed  in  this 
honorable  Court,  on  the  twenty  third  day  of  June  instant,  included 
all  the  lands  owned  by  any  of  the  said  parties,  and  lying  and  being 
within  the  actual  locations  of  said  Rail  Road,  and  from  the  Point  of 
Rocks  aforesaid,  to  the  town  of  Cumberland. 

But  now,  so  it  is,  may  it  please  your  Honor,  that  after  the  above  pro¬ 
ceedings  had  taken  place,  and  the  above  specified  actual  locations  were 
made,  upon  an  application  to  Washington  County  Court,  as  a  Court  of 
Equity,  praying  an  injunction  to  restrain  your  orators  from  obtain¬ 
ing  a  title  to  any  of  the  lands  included  in  said  actual  locations,  by 
purchase  or  condemnation,  by  or  on  behalf  of  the  Chesapeake  and 


105 


Ohio  Canal  and  Potomac  Companies,  the  said  injunction  as  prayed 
for,  was  accordingly  issued ;  as  will  more  fully  appear,  from  a  copy 
of  the  said  bill  of  complaint  of  the  said  companies,  and  of  the  injunc¬ 
tion  issued  thereon,  which  are  exhibited  by  your  orators  in  a  bill  of 
complaint  by  your  orators,  against  the  said  Companies,  filed  in  this 
Honorable  Court,  on  the  23d  day  of  June  instant,  to  which  your  ora¬ 
tors  beg  leave  to  refer,  as  part  of  this  bill  of  Complaint. 

Your  orators  further  shew,  as  they  are  advised,  and  believe,  neither 
of  the  said  Companies  have,  or  are  entitled  to,  any  such  priority  or 
right  of  election  as  to  all  the  lands  included  iri  said  actual  locations, 
as  is  set  forth  and  relied  upon  in  their  said  bill  of  complaint ;  that  the 
Potomac  Company  has  been  incorporated  for  more  than  forty  years, 
and  that  during  all  that  period,  the  said  Company  has  not  exercised 
any  franchise,  which  it  may  have  derived  under  its  charter,  as  to  any 
of  said  lands,  as  your  orators  are  informed,  and  verily  believe,  that 
when  the  said  locations  were  made,  the  said  Chesapeake  and  Ohio 
Canal  Company  was  not  sufficiently  organized,  so  as  to  be  competent 
under  its  charter,  to  do  any  acts  whieh  were  and  are  necessary,  to  vest 
in  it  said  priority  and  right  of  election,  although  the  said  Company 
is  now  sufficiently  organized  for  said  purpose,  by  the  election  of  a 
President  and  Directors ;  that  your  orators  have  reason  to  believe, 
and  verily  believe,  the  principal  if  not  the  sole  design  of  the  said  Com¬ 
panies,  was  to  deprive  your  orators  of  all  the  right  which  they  had 
acquired  by  purchase,  and  of  the  priorities  obtained  by  location  or 
warrants,  to  value  and  condemn,  and  to  restrain  your  orators  in  the 
exercise  of  them,  until  the  said  Cheapeake  and  Ohio  Canal  Company 
was  sufficiently  organized,  to  be  competent  to  acquire  a  title  to  the 
lands  included  in  said  locations,  by  location  and  purchase,  or  condem¬ 
nation,  and  might  thus  be  enabled,  by  depriving  your  orators  of  said 
priority  by  the  said  injunction,  or  suspending  the  enjoyment  of  it,  to 
acquire  in  the  mean  time  titles  to  the  said  lands,  based  upon  purcha¬ 
ses  or  condemnation  by  the  said  Company,  if  their  claim  of  priority 
as  to  said  lands,  set  fortli  in  their  said  bill  of  complaint,  should  ulti¬ 
mately  be  determined  against  them ;  that  the  said  proceeding  by  in¬ 
junction  was  not  necessary  to  protect  any  such  claim  of  priority,  as 
that  set  forth  by  the  said  Companies  in  their  said  bill  of  complaint; 
and  that  the  intention  and  design,  above  imputed  to  the  said  Compa¬ 
nies  and  their  agents,  is  still  further  evidenced  by  the  fact,  that  both 
before  and  since  the  said  injunction  has  been  obtained,  one  or  more 
agents  of  the  said  Companies,  or  persons  professing  to  act  on  their 
behalf,  have  been  actively  engaged,  as  your  orators  are  informed,  and 
verily  believe,  in  acquiring  titles  by  purchase,  to  the  very  lands  lying 
within  the  actual  locations  aforesaid  ;  and  that  one  or  more  deeds  and 
agreements  for  the  purchase  of  lands  lying  within  said  locations, 
have  actually  been  obtained  from  the  owner  or  owners  thereof;  and 
your  orators  have  reason  to  believe,  and  verily  do  believe,  that  they,  the 
said  Companies  and  their  agents,  will  endeavour  in  every  possible 
mode,  to  deprive  your  orators  of  the  benefit  of  the  abovementioned  lo¬ 
cations,  and  to  procure  titles  to  the  lands  lying  within  .the  same, 
12 


406 


wherever  it  is  practicable,  in  utter  disregard  of  the  rights  of  your 
orators ;  and  if  not  prevented  will  acquire  titles  by  purchase  or  con¬ 
demnation,  to  all  of  them,  and  will  obtain  possession  of  said  lands, 
under  such  purchases  or  condemnations,  and  will  keep  your  orators 
out  of  possession,  so  that  in  the  event  of  a  decision  in  favor  of  your 
orators,  and  against  the  claim  of  priority  set  up  by  the  said  Compa¬ 
nies,  your  orators  cannot  without  much  expense  and  delay,  and  call¬ 
ing  in  the  aid  of  a  Court  of  Chancery,  be  restored  to  their  priorities  as 
they  existed,  when  said  injunction  against  them  was  obtained  ;  your 
orators  further  shew,  that  under  their  said  act  of  incorporation,  the 
location  of  their  road,  as  they  are  advised,  constitutes  the  incipiency 
of  a  legal  title  to  the  lands  lying  within  the  same,  to  be  perfected 
within  a  reasonable  time,  the  said  location  or  determination  of  the 
site  of  said  road,  being  an  election  on  the  part  of  your  orators,  in  the  t 

exercise  of  a  general  franchise  as  to  the  particular  application  of  it, 
and  being  also,  the  first  step  to  be  taken  by  your  orators,  to  acquire  a 
title  to  the  lands  for  the  site  of  said  road  ;  and  your  orators  also  shew, 
that  not  only  were  the  said  locations  made  as  an  act  of  election  on 
the  part  of  your  orators,  and  with  the  intent  and  design  of  determin¬ 
ing  the  site  of  said  road,  so  that  your  orators  might  acquire  a  title  to 
the  lands  wanted  for  the  same  as  soon  thereafter  as  possible;  but  that 
as  your  orators  are  informed  by  their  agents,  and  verily  believe,  a 
perfect  legal  title  would  have  been  acquired  to  all  the  lands  lying 
within  the  abovementioned  locations,  by  deed  or  condemnation,  or 
warrants  to  summon  juries  to  value  the  same,  for  the  use  of  your  ora¬ 
tors,  would  have  been  issued,  so  as  to  constitute  an  unquestionable 
•  inception  of  title,  before  the  twentieth  day  of  the  present  month,  and 
before  the  said  Chesapeake  and  Ohio  Canal  Company  could  have 
been  organized  and  competent  to  acquire  a  title  to  the  same  in  any 
mode ;  and  also  before  the  said  Potomac  Company,  if  it  yet  has  any 
rights,  could  have  exercised  them,  so  as  to  give  them  even  an  incep¬ 
tion  of  title,  had  not  the  injunction  heretofore  mentioned,  been  obtain¬ 
ed,  by  the  aid  of  which  your  orators  have  been  restrained  from  ac¬ 
complishing  the  objects  for  which  said  locations  were  made,  and  per¬ 
fecting  the  title  thus  begun,  and  the  said  Chesapeake  and  Ohio  Canal  f 

Company  is  enabled,  in  consequence  of  its  subsequent  organization, 
to  acquire  a  title,  or  to  endeavour  to  acquire  it,  as  to  the  said  lands, 
in  the  very  mode  in  which  your  orators  were  acquiring  it. 

Your  Orators  further  shew,  that  as  the  bill  of  complaint  of  the  said 
companies  against  your  orators  alleges,  that  the  injunction  sued  out 
by  the  said  Companies  was  applied  for  and  obtained  by  them  solely 
for  the  purpose  of  protecting  an  alleged  priority  and  right  of  election 
residing  in  said  Companies,  as  to  all  the  said  lands,  which  exists 
without  any  act  on  the  part  of  said  Companies,  to  secure  or  vest  the 
title  to  the  same  in  them,  and  of  procuring  a  speedy  decision  upon  their 
alleged  right,  that  the  said  priority  as  claimed  by  them,  existing, 
if  it  exists  at  all,  without  location,  purchase  or  condemnation,  on  their 
part  to  vest  it,  such  acts  will  not  be  necessary  therefore  to  protect  or 
sustain  their  alleged  right ;  that  by  the  injunction  ahovementioned, 


107 


your  orators  will  be  left  unprotected  against  the  consequences  of  such 
acts  on  the  part  of  said  Companies ;  and  that  having  due  respect 
for  and  in  all  respects  obeying  the  aforesaid  injunction  issued  out  of 
Washington  County  Court,  they  can  be  protected  against  an  unjust 
and  unconscientious  use  or  abuse  of  the  same  only  hy  confining 
said  Companies  to  the  alleged  title  as  set  forth  in  their  said  bill  of 
complaint,  and  hy  restraining  them  from  acquiring  in  the  mean  time 
a  title  to  the  lands  lying  within  your  orators’  aforesaid  locations,  by 
purchase  or  condemnation,  so  that  if  the  said  alleged  priority  of  said 
Companies  be  not  sustained,  your  orators  may  be  remitted  at  once  to 
all  the  rights  and  priorities  they  enjoyed  when  said  injunction  was 
obtained. 

Wherefore, *and  forasmuch  as  your  orators  are  remediless  without 
the  aid  of  a  court  of  equity,  and  as  this  court  possessing  jurisdiction 
coextensive  with  the  limits  of  the  State,  is  alone  competent  to  give 
that  extensive  speedy,  and  efficient  relief,  which  the  nature  and 
urgency  of  the  case  require. 

To  the  end  therefore,  that  the  said  Chesapeake  and  Ohio  Canal 
Company  and  Potomac  Company,  may  be  required  to  come  in  and 
answer  the  premises  ;  and  that  the  said  Companies,  their  agents  and 
attornies,  or  the  agents  and  attornies  of  either  of  them,  and  all  per¬ 
sons  professing  to  act  under  their  authority,  or  on  their  behalf,  or  on 
the  behalf  of  either  of  them,  may  be  strictly  prohibited  and  enjoined 
from  making  any  contract  £>r  agreement  w  ith,  or  receiving  any  deed 
or  conveyance  from  any  of  the  abovementioned  owners  of  the  lands 
lying  within  the  above  exhibited  locations  for  said  lands,  or  the  pur¬ 
chase  of  any  interest  whatever  in  the  same  or  in  any  part  of  them ; 
and  also  from  causing  to  be  issued  or  executed,  or  applying  for  any 
warrant  or  warrants,  to  summon  any  jury  or  juries  to  value  the  same 
for  the  use  of  either  of  said  Companies,  and  also  from  preventing 
your  orators  from  taking  possession  of  the  same,  and  also  strictly 
enjoining  and  prohibiting  the  several  Sheriffs  and  Justices  of  the 
Peace,  in  and  for  the  counties  of  Frederick,  Washington  and  Alleghany, 
the  latter  from  issuing  and  the  former  from  executing  any  such  war¬ 
rant  or  warrants  ;  your  orators  pray  your  Honor,  that  the  said 
Chesapeake  and  Ohio  Canal  Company  and  said  Potomac  Company, 
may  he  made  defendants  to  this  bill,  and  that  your  Honor  will  grant 
unto  your  orators  the  State’s  writ  of  subpoena,  directed  to  the  said 
defendants,  and  requiring  them,  the  said  defendants,  to  come  in  and 
answer  the  premises,  and  that  your  Honor  will  also  grant  unto  your 
orators  the  State’s  writ  of  injunction,  directed  to  the  Chesapeake 
and  Ohio ‘Canal  Company,  the  Potomac  Company,  their  agents  and 
attornies,  the  agents  and  attornies  of  either  of  them,  and  all  persons 
acting  or  professing  to  act,  under  the  authority,  or  on  the  behalf  of 
the  said  Companies,  or  of  either  of  them  ;  and  the  several  Sheriffs  and 
Justices  of  the  Peace  of  the  counties  of  Frederick,  Washington,  and 
Alleghany,  strictly  enjoining  and  prohibiting  the  said  Companies, 
and  their  said  agents,  attornies,  or  other  persons  acting  or  professing 
to  act  on  behalf  of  said  Companies,  or  cither  of  them,  from  making 


e> 


108 


any  contract  or  agreement  with,  or  receiving  or  obtaining  any  deed 
or  conveyance  from  John  Mitchell,  the  heirs  at  law  of  the  late  Jacob 
Fouty  of  Alleghany  county,  or  any  of  them,  the  widow  and  heirs  at 
law  of  the  late  John  O’Neill,  or  any  of  them,  Simon  Taylor,  Michael 
C.  Sprigg,  Luther  Martin  Cresap,  and  the  Cumberland  Bank  of 
Alleghany,  or  any  of  them,  for  the  lands  or  any  interest  in  any  lands 
by  them  owned  or  possessed,  and  lying  within  the  limits  of  the  actual 
location  of  the  Baltimore  and  Ohio  Rail  Road,  as  surveyed  and 
marked  out  by  the  engineers  of  the  Baltimore  and  Ohio  Rail  Road 
Company,  under  the  direction  of  the  President  and  Directors  thereof, 
for  the  route  and  site  of  said  road,  before  the  10th  day  of  June, 
1828;  and  also  from  applying  for  or  causing  to  be  issued  or  exe¬ 
cuted,  any  warrant  or  warrants,  to  summon  any  jury  or  juries  to  value 
the  same  for  the  use  of  said  Companies,  or  either  of  them  ;  and  also 
enjoining  and  prohibiting  the  said  Justices  and  Sheriffs,  the  former 
from  issuing  and  the  latter  from  executing,  any  warrant  or  warrants, 
to  summon  any  jury  or  juries  to  value  any  of  said  lands  for  the  use  of 
said  Companies,  or  either  of  them,  until  the  claim  of  priority  as  set 
forth  by  the  said  Chesapeake  and  Ohio  Canal  and  Potomac  Compa¬ 
nies,  in  their  bill  of  complaint  against  your  orators,  filed  in  Wash¬ 
ington  County  Court  as  aforesaid,  on  the  10th  day  of  June,  1828, 
shall  have  been  finally  heard  and  determined,  or  until  the  further 
order  of  this  Court.  And  your  orators  also  pray  your  Honor  to 
grant  them  such  other  and  further  relief  as  the  equity  of  their  case 
may  require.  And  your  orators,  &c. 

R.  B.  TANEY, 

7  WILLIAM  GWYNN, 

J.  H.  B.  LATROBE, 
JOHNY.  L.  McMAIION, 

Solicitors  for  Compf . 

Maryland — Jinne  Arundel  County ,  to  wit  : 

Be  it  remembered,  That  on  this  25th  of  June,  1828,  personally 
appeared  before  me  the  subscriber,  a  Justice  of  the  Peace  in  and  for 
the  county  aforesaid,  John  Y.  L.  McMahon,  who  being  duly  sworn 
on  the  Holy  Evangelists  of  Almighty  God,  deposeth  andsaith,  that  he 
knows  or  is  credibly  informed,  and  verily  believes,  that  the  matters 
and  things  stated  in  the  above  Bill  of  Complaint,  are  just  and  true 
as  stated,  to  the  best  of  his  knowledge  and  belief. 

Sworn  to  before  me,  JOS.  HOLLAND. 

In  Chancery,  25th  June,  1828. 

Ordered ,  That  writs  of  Subpoena  and  Injunction  issue,  as  prayed  by 
the  aforegoing  Bill  of  Complaint.  And  it  is  further  ordered,  that 
at  any  time  after  the  said  defendants  have  filed  their  answers,  the 
Court  will  hear  a  motion  to  dissolve  the  said  injunction  :  Provided , 
the  said  Defendants  give  to  the  said  Plaintiff  ten  days  notice  thereof* 


109 


And  the  Register  is  directed  to  endorse  a  copy  of  this  order  on  the 
said  writ  of  injunction,  that  it  may  be  served  therewith  on  the  said 
Defendants.  THEODORICK  BLAND,  Chancellor . 

True  Copy,  Test  : 

Ramsay  Waters,  Keg.  Cur.  Can . 


ANSWER 

OF 

THE  CHESAPEAKE  AND  OHIO  CANAL  COMPANY 

TO  THE  AFOREGOING  THREE  BILLS. 

The  answer  of  the  Chesapeake  and  Ohio  Canal  Company,  to  the 
three  several  bills  of  injunction,  filed  respectively  on  the  23d,  24th, 
and  25th  days  of  June,  1828,  in  the  Court  of  Chancery  of  the  State 
of  Maryland,  by  the  Baltimore  and  Ohio  Rail  Road  Company,  against 
these’ respondents  and  the  late  Potomac  Company:  which  several  bills 
these  respondents  pray  leave  to  answer  as  consolidated  in  one  suit. 

(1.)  These  respondents,  now  and  at  all  times  hereafter  saving  and 
reserving  to  themselves  all,  and  all  manner  of  benefit  and  advantage 
of  exception,  to  the  manifold  errors,  inconsistencies,  imperfections 
and  untruths  in  the  said  bills,  and  in  each  and  every  of  them  contain¬ 
ed,  for  answer  thereto,  or  to  so  much  thereof  as  they  are  advised  it  is 
material  or  necessary  for  them  to  answer,  say,  that  in  order  more 
clearly  to  illustrate  the  antiquity  of  their  right  and  title,  and  of  the 
public  recognitions  of  their  right  and  title,  in  preference  to  all  other 
projects  of  internal  improvement^  and  to  the  claims  and  interests  of 
all  other  corporations  and  individuals  particularly  of  the  complain¬ 
ants,  to  appropriate  to  the  construction  of  the  Chesapeake  and  Ohio 
Canal,  and  of  its  incidental  works  andappendages,  the  most  eligible, 
proper  and  convenient  site  and  route  for  the  Canal  through  the  vale 
of  the  Potomac,  from  tide  water  to  its  highest  sources,  and  especi¬ 
ally  that  identical  site  and  route,  along  the  vale  and  narrow  passes 
of  that  river,  from  the  Point  of  Rocks  where  the  river  passes  through 
the  Catoctin  mountain,  in  Frederick  county,  Maryland,  to  Cumber¬ 
land,  in  Alleghany  county,  which  the  complainants  have  attempted, 
or  now  pretend  in  their  said  bills,  a  right  to  appropriate  and  occupy 
for  the  site  and  route  of  their  intended  Rail-Road,  they  deem  it  expedi¬ 
ent  and  proper  to  submit  to  the  Court  a  historical  deduction  of  their 
title,  from  the  inception  of  the  first  scheme  for  improving  the  navi¬ 
gation  of  that  river  by  means  of  a  Canal  or  otherwise,  to  its  con¬ 
summation  in  the  charter,  by  which  these  respondents  are  incorpora¬ 
ted  ;  shewing  the  notoriety  of  the  public,  and  early  dedication  of  the 
ground  in  question,  to  the  ends  and  purposes  of  a  Canal,  supplied  by 
the  waters  of  the  Potomac  and  its  tributaries ;  the  authentic  and 


no 


binding  acts  of  public  authority,  and  the  implied,  as  well  as  direct 
pledges  of  the  public  faith,  by  which  such  dedication  of  the  ground  in 
question  has  been  sanctioned  and  guarantied ;  and  the  conclusive  and 
plenary  notice  of  the  same  with  which  the  complainants  have  advanced 
their  adverse  pretensions,  and  in  so  doing,  have  not  only  unconscion¬ 
ably  infringed  the  chartered  rights  of  these  respondents,  but  have  at¬ 
tempted  to  overreach,  contravene,  and  defeat  the  high  objects  and 
intents  of  public  policy,  as  authentically  declared  and  promulgated 
by  the  most  solemn  conventions  of  States,  communities  and  individ¬ 
uals,  and  irrevocably  established  by  numerous  legislative  enactments. 

( 2. )  That  the  improved  navigation  of  the  Potomac,  by  means  of 
a  canal  or  otherwise,  from  tide  water  to  the  sources  of  that  river,  or 
at  least  as  high  as  Cumberland,  was  early  considered,  before  the  incor¬ 
poration  of  the  late  Potomac  Company,  and  both  before  and  after  the  Re¬ 
volution,  an  object  of  public  and  national  importance,  and  as  such  en¬ 
gaged  the  active  attention  of  the  most  eminent  statesmen  and  patriots, 
in  Virginia  and  Maryland  ;  that  immediately  after  the  peace  of  1783, 
it  was  the  first  and  leading  object  of  public  improvement  to  which 
those  States,  and  their  principal  citizens  directed  their  attention ; 
that  the  far-reaching  views  of  the  eminent  citizens  conjointly  employ¬ 
ed  by  those  States  in  devising  and  perfecting  the  plan  of  that  great  im¬ 
provement,  and  among  the  most  active  and  zealous  of  whom  were 
found  many  of  the  most  celebrated  patriots  and  warriors  of  the  revo¬ 
lution,  contemplated  it,  even  at  that  early  period,  as  the  great  chan¬ 
nel  of  commerce  and  intercourse  that  was  to  connect  the  original 
States  with  the  vast  and  fertile  regions  beyond  the  Alleghanies ;  and 
that  the  charter  of  the  late  Potomac  Company  was  the  practical  and 
direct  result  of  those  enlarged  views  and  objects,  is  matter  of  histo¬ 
ry,  and  is  more  particularly  illustrated  by  the  papers  and  plans  of  Gen¬ 
eral  George  Washington  ;  by  the  delegation  from  the  states  of  Vir¬ 
ginia  and  Maryland,  of  that  eminent  citizen,  and  other  most  distin¬ 
guished  public  men  of  both  States,  as  commissioners  to  consider  and 
report  a  plan  of  the  work  ;  by  the  public  proceedings  and  report  of 
those  commissioners  at  Annapolis,  in  the  year  1784 ;  and  by  the  con¬ 
current  laws  of  Virginia  and  Maryland,  establishing  the  late  Poto¬ 
mac  Company,  followed  up  by  various  acts  of  the  like  concurrent 
legislation,  from  time  to  time,  enlarging,  modifying,  or  confirming 
the  original  charter  of  that  Company. — For  authentic  copies  of  some 
of  the  preliminary  documents  and  proceedings  above  referred  to,  and 
of  all  the  laws  relating  to  the  said  Potomac  Company,  these  respon¬ 
dents  pray  leave  to  refer  to  the  printed  collections  of  the  same,  an¬ 
nexed  to  this  answer,  among  the  other  public  and  authentic  documents 
hereto  annexed,  and  enumerated  in  a  schedule  hereto  annexed  ;  all  of 
which,  they  aver  to  be  public  and  authentic  documents,  and  pray  that 
the  same  be  received  and  referred  to  as  part  and  parcel  of  this  their 
answer. 

(3.)  It  was  found,  after  an  experience  of  between  thirty  and  forty 
years,  that  the  plan  adopted  by  the  late  Potomac  Company  for  ren¬ 
dering  the  river  navigable,  was  essentially  defective  and  wholly 


ill 


inadequate  to  the  great  objects  for  which  that  Company  had  been 
instituted;  that  all  their  large  capital,  and  the  long  and  arduous 
labors  of  so  many  years  had  been  expended,  without  attaining  the 
great  end  of  an  uninterrupted  and  safe  navigation  from  the  tidewater 
to  the  source  of  that  river ;  a  failure  not  originating  in  any  defect 
of  zeal  or  perseverance,  or  general  intelligence  in  the  conduct  of 
that  Company,  but  in  the  inadequacy  of  their  pecuniary  means  at 
the  time,  in  the  imperfect  state  of  the  science  of  canalling,  and  in 
the  general  misconceptions  of  the  facilities  afforded  by  the  river, 
itself,  for  navigation,  and  of  the  comparative  advantages  of  a  con¬ 
tinuous  canal  through  the  vale  of  the  river,  supplied  by  its  own  and 
its  tributary  waters,  and  of  what  is  called  sluice  navigation ;  mis¬ 
conceptions  common  to  them  and  to  the  whole  American  community, 
till  the  progressive  lights  of  experience  and  science  had  subsequently 
demonstrated  the  superior  advantages  of  the  continuous  Canal. 
When  this  unfortunate  result  had  become  evident,  the  Potomac  Com¬ 
pany,  as  well  as  the  community  at  large,  began  to  consider,  with  an 
earnestness  and  solicitude,  due  to  the  great  and  extensive  interests 
dependent  on  the  scheme,  the  means  of  repairing  the  original  errors 
in  its  theory  and  details,  and  of  reverting  to  the  proper,  and  nowr 
demonstrated  plan  of  a  continuous  Canal  all  along  through  the  vale 
of  the  river,  using  the  waters  of  the  river  and  its  tributaries,  as 
feeders  to  the  canal;  a  plan  entirely  within  the  scope  of  their 
chartered  powers,  and  of  the  original,  notorious  and  declared  ends 
and  objects  of  their  institution  ;  and  with  this,  the  Company  con¬ 
nected  the  ulterior  plan,  to  which  their  chartered  limits  did  not 
then  specifically  extend,  and  the  practicability  of  which  had  but 
recently  been  thought  deserving  of  further  inquiry,  (after  the  report 
of  the  Secretary  of  the  Treasury,  in  the  year  1808,  assuming  it  to  be 
impracticable  for  a  canal  to  pass  the  summit  of  the  Alleghany,  for 
want  of  an  adequate  supply  of  water  on  the  summit  level)  of  effecting 
a  connected  canal  navigation  between  the  head  waters  of  the  Potomac 
and  Ohio  rivers.  With  these  views  the  late  Potomac  Company,  in  the 
year  1819,  applied  to  the  Board  of  Public  Works  of  Virginia,  to  insti¬ 
tute,  through  their  principal  engineer,  the  proper  examinations  and  sur¬ 
veys  for  determining  the  best  mode  of  improving  the  navigation  of 
the  Potomac,  and  facilitating  a  communication,  by  way  of  that  river, 
with  the  western  waters.  In  consequence  of  which  application  the 
Legislature  of  Virginia  passed  their  resolution  of  the  8th  January, 
1820,  requesting  the  said  Board  of  Public  Works  to  inquire  into 
the  expediency  of  directing  their  principal  engineer  to  examine  the 
waters  of  the  Potomac,  and  to  explore  the  country  between  the 
Potomac  and  Ohio,  Ac.  with  a  view  to  ascertain  and  report  the 
practicability  of  effecting  a  communication  by  canals,  between  those 
rivers;  an  authentic  copy  of  which  resolution  is  hereto  annexed 
among  the  said  scheduled  documents.  And  the  said  Board  of  Public 
Works  did  accordingly  cause  the  proper  examinations  and  surveys 
to  be  made  by  their  principal  engineer,  the  late  Thomas  Moore  ; 
who,  in  the  year  1820,  made  his  official  report  of  the  same,  which. 


112 


with  the  said  application  from  the  Potomac  Company,  was  officially 
printed  and  published  in  the  annual  reports  of  the  said  Board,  and 
is  hereto  annexed  among  the  said  scheduled  documents. 

(4.)  The  examinations  and  surveys  of  the  ground  itself,  by  this 
practical  and  gifted  engineer,  gave  results  very  different  from  those 
of  the  report  of  the  Secretary  of  the  Treasury,  above  referred  to, 
and  which  had  proceeded  upon  the  apprehension  of  conjectural 
difficulties,  not  brought  to  the  test  of  professional  examination  a\ul 
experiment,  as  will  be  evident  from  a  comparison  of  the  two  reports. 
This  report  of  Mr.  Moore  gave  a  fresh  impetus  to  public  curiosity  ; 
and  the  long  talked  of  plan  of  a  connected  navigation  between  the 
eastern  and  western  waters,  was  agitated  with  renewed  interest. 
Then  followed  the  law  of  Virginia,  and  the  concurring  resolutions 
of  the  General  Assembly  of  Maryland  (also  annexed  among  the 
said  scheduled  documents)  passed  at  the  December  sessions,  1821, 
of  the  Legislatures  of  those  States  respectively,  for  the  appointment 
of  two  commissioners  on  the  part  of  each  State,  among  other  things 
to  examine  into  and  report  the  state  of  the  navigation  of  the  Potomac, 
and  to  advise  and  consult  as  to  the  measures  most  advisable  to  be 
recommended  to,  and  conjointly  adopted  by  the  said  States,  either 
for  giving  aid  to  the  Potomac  Company  in  the  further  prosecution 
of  the  work,  or  for  the  more  effectual  improvement  of  the  navigation 
of  the  said  river,  by  other  means,  &c. 

(5.)  The  commissioners  appointed  in  pursuance  of  the  said  law 
and  resolutions,  proceeded,  in  the  summer  and  autumn  of  the  year 
1822,  to  execute  their  commission  in  its  utmost  latitude ;  with  the 
assistance  of  the  said  Thomas  Moore,  the  principal  civil  engineer 
attached  to  the  Board  of  Public  Works  of  Virginia,  and  other  com¬ 
petent  engineers  and  surveyors.  Their  joint  report  of  their  pro¬ 
ceedings,  with  an  appendix  of  explanatory  documents,  was  duly 
returned  to  the  respective  Governors  of  the  two  States  in  December, 
1822;  and  by  the  said  Governors  officially  communicated  to  the 
respective  Legislatures  of  those  States,  at  the  December  sessions 
1822  of  the  same;  and  were  immediately  printed  and  published,  at 
public  expense,  in  both  States,  by  the  authority  of  each  Legislature ; 
and  a  copy  of  the  same  report,  &c.  was  in  January,  1823,  sent  with 
an  official  and  public  communication  from  the  Governor  of  Maryland, 
to  the  President  of  the  Senate  of  the  United  States,  to  be  laid  before 
the  Senate,  pursuant  to  a  resolution  of  the  General  Assembly  of 
Maryland  ;  and  was,  together  with  the  Governor’s  communication, 
then  immediately  reprinted  and  republished  by  order  of  the  Senate, 
among  its  public  documents :  each  of  the  printed  copies,  so  printed 
and  published  by  authority  of  the  Legislature  of  Maryland,  and  of 
the  Senate  of  the  United  States,  is  hereto  annexed  among  the 
scheduled  documents. 

(6.)  These  respondents  also  refer  to  the  original  communication 
from  the  Governor  to  the  General  Assembly  of  Maryland,  at  the 
December  session,  1821,  and  the  report  of  the  committee  of  the 
House  of  Delegates  at  that  session  thereon,  as  printed  and  published 


i  18 


by  authority  of  the  said  House,  and  hereto  also  annexed  among  the 
said  scheduled  documents. 

(7.)  At  the  same  sessions  of  the  two  Legislatures  of  Virginia  and 
Maryland,  to  which  the  report  of  the  said  commissioners  was  com¬ 
municated  by  their  respective  Governors,  applications  were  made 
to  each  Legislature,  by  a  number  of  individuals  and  corporations, 
acting  in  concert ;  for  a  charter  to  a  new  Company,  in  place  of  the 
old  Potomac  Company,  upon  certain  terms  for  the  surrender  of  the 
charter  of  the  latter,  approved  by  them. 

(8.)  This  new  charter,  connected  with  a  provision  for  a  consider¬ 
able  part  of  the  stock  to  be  taken  by  each  State,  was  at  that  time 
earnestly  solicited  by  the  persons  principally  interested  in  the  scheme ; 
and  especially  by  the  three  corporate  cities  in  the  District  of  Colum¬ 
bia,  who  deputed  proper  agents  to  solicit  and  advance  the  plan,  with 
the  two  Legislatures.  Such  progress  was  made  in  this  matter  in 
the  Legislature  of  Maryland,  that,  in  January,  1823,  a  bill  to  estab¬ 
lish  the  Potomac  Canal  Company,  was  reported  by  a  committee  to 
the  House  of  Delegates ;  one  of  the  copies  of  which,  as  printed  by 
the  authority  of  the  said  House,  is  hereto  annexed  among  the  said 
scheduled  documents.  But  as  this  was  accompanied  by  a  proposi¬ 
tion  for  a  large  pecuniary  contribution  from  the  State,  which  met 
with  considerable  objection  and  difficulty  in  the  Assembly,  and  with¬ 
out  which  the  friends  of  the  bill  did  not  deem  it  material  to  press  the 
enactment  of  the  charter,  that  session  passed  over  without  any 
definitive  enactment  on  the  subject.  At  the  contemporary  session  of 
the  Virginia  Legislature,  on  the  22d  of  February,  1823,  an  act 
incorporating  the  Potomac  Canal  Company  did  pass ;  an  authentic 
copy  of  which  is  also  annexed  among  the  said  scheduled  documents. 

(9.)  The  original  bill  had  been  presented  to  the  Virginia  Legisla¬ 
ture,  and  the  enactment  of  it  solicited  in  the  same  terms  as  that  above 
mentioned,  in  the  Maryland  Legislature  ;  and  underwent,  in  its  pro¬ 
gress,  sundry  changes  and  modifications,  originating  with,  and  sug¬ 
gested  by,  particular  members  of  the  Virginia  Assembly. 

(10.)  About  the  time  that  the  proceedings  were  going  on  in  the 
two  State  Legislatures,  the  subject  was  brought  before  Congress,  in 
consequence  of  sundry  memorials  from  the  inhabitants  of  Pennsyl¬ 
vania,  Maryland,  and  Virginia ;  and  of  resolutions  moved  in  Con¬ 
gress  on  the  suggestion  of  certain  members  of  that  body.  For  the 
progress  of  that  body,  in  considering  the  subject  and  preparing  mea¬ 
sures  for  the  advancement  of  the  projected  canal  in  the  winter  of 
1 821-2,  and  the  ensuing  Spring,  these  respondents  refer  to  the  print¬ 
ed  and  official  report  of  the  proceedings  of  the  House  of  Representa¬ 
tives  of  the  United  States,  at  the  first  session  of  the  seventeenth  Con¬ 
gress,  mentioned  in  the  annexed  schedule. 

(11.)  Before  the  sessions  of  the  two  Legislatures  of  Virginia  and 
Maryland  for  December,  1823,  when  the  solicitations  for  the  final 
enactment  of  the  charter  were  intended  to  be  renewed  with  unabated 
activity  and  zeal,  the  views  of  the  numerous  individuals  and  com¬ 
munities,  interested  in  the  business,  were  considerably  extended  and 
13 


114 


improved  in  the  scope  and  objects  of  the  immediate  plan  of  a  canal. 
The  great  scheme  of  a  canal,  not  confined  to  the  Potomac  region, 
but  forming  a  connected  navigation  between  the  head  waters  of  that 
river  and  the  western  waters,  even  to  Lake  Erie,  had  excited  such 
general  attention,  and  so  intense  an  interest  throughout  the  country, 
that  the  people  of  the  States  of  Virginia,  Maryland,  Pennsylvania, 
and  Ohio,  and  of  the  District  of  Columbia,  solemnly  appointed  nu¬ 
merous  delegates,  from  among  their  most  respectable  and  influential 
citizens,  to  meet  in  convention  at  the  Seat  of  the  General  Govern¬ 
ment,  and  there  consult  and  co-operate  for  the  advancement  of  the 
common  object.  This  convention  held  its  first  session  at  Washing¬ 
ton,  in  November,  1823,  and  its  second  session  at  the  same  place,  in 
December,  1826  :  the  debates  and  proceedings  in  both  of  which  were 
public,  and  were  respectively  printed  and  published  immediately  after 
each  session  of  the  convention  ;  and  an  authentic  copy  of  all  of  which, 
collected  in  one  pamphlet,  containing  a  second  printed  edition  of  the 
proceedings  of  the  first  session,  together  with  the  proceedings  of  the  se¬ 
cond,  printed  and  published  immediately  after  its  adjournment,  is 
hereto  annexed  among  the  said  scheduled  documents. 

(12.)  From  the  time  of  the  organization  of  this  body,  the  whole 
management  of  the  undertaking,  the  business  of  maturing  its  plan, 
of  promoting  and  soliciting  its  general  interests,  and  the  grant  of  a 
charter  and  public  patronage  from  the  several  Legislatures  and  Go¬ 
vernments  upon  which  it  more  particularly  depended,  and  in  fulfil¬ 
ment  of  the  enlarged  and  beneficial  views  disclosed  in  the  proceed¬ 
ings  of  the  convention,  devolved  upon  that  body,  and  the  several 
standing  committees  appointed  by,  and  acting  under,  its  authority, 
as  recorded  in  its  proceedings;  reinforced  by  the  occasional  repre¬ 
sentations  and  memorials  of  the  corporate  cities  in  the  District  of 
Columbia,  and  the  commissioners  appointed  by  the  Executives  of 
Virginia  and  Maryland,  and  the  President  of  the  United  States,  to 
open  subscriptions  for  the  capital  stock  of  the  company,  pursuant  to 
the  charter  finally  obtained.  The  report  of  the  Central  Committee 
of  the  said  convention,  as  printed  in  the  aforesaid  proceedings  of  its 
second  session,  in  December,  1826,  correctly  details  the  actings  and 
doings  of  that  and  its  associate  committees,  and  the  general  objects 
and  results  of  their  labors  during  the  recess  of  the  convention  ;  and 
these  respondents  refer  to  the  same,  among  other  of  the  recorded  and 
published  proceedings  of  the  said  convention,  as  part  of  this  their 
answer.  For  the  further  proceedings  of  the  said  convention  and  its 
committees,  and  of  other  parties  interested  in  the  public  project  of 
tbe  Chesapeake  and  Ohio  Canal,  and  for  the  action  of  the  public  au¬ 
thorities  upon  the  subject,  from  the  adjournment  of  the  first  session 
of  the  said  convention,  in  November,  1823,  down  to  the  passage  of 
the  act  of  Congress  of  the  24th  May,  1828,  authorizing  a  subscrip¬ 
tion  to  the  stock  of  the  Chesapeake  and  Ohio  Canal  Company,  the 
respondents  refer  to  all  and  singular  the  public  proceedings  and  acts 
of  the  Legislatures  of  Virginia,  Maryland,  and  Pennsylvania,  and 
of  the  Congress  of  the  United  States,  and  the  several  committees  of 


115 


those  bodies,  as  recorded  and  published  in  their  respective  journals, 
reports,  documents,  and  bodies  of  laws  ;  the  whole  of  which,  in  any 
manner  relating  to  the  subject  of  the  Chesapeake  and  Ohio  Canal,  its 
plan,  course,  and  construction,  to  its  adoption  by  the  public  authori¬ 
ties  as  a  work  of  national  import,  to  the  interest  taken  in  it  by  the 
several  States  and  the  United  States,  to  the  incorporation  of  this 
company,  and  to  all  the  preparatory  legislative  deliberations,  mea¬ 
sures,  and  proceedings,  leading  to  that  act,  or  consequent  to  it,  these 
respondents  pray  may  be  referred  to,  and  taken  by  this  Court  as 
part  and  parcel  of  this  answer,  and  as  public,  authentic,  and  noto¬ 
rious  in  themselves. 

(13.)  From  these  documents,  the  respondents  deem  it  material  by 
way  of  illustration,  here  to  recapitulate  only  the  following  facts, 
which  are  verified  in  detail  by  the  said  documents,  and  are  true  and 
of  public  notoriety. 

(14.)  At  the  opening  of  the  first  session  of  the  Eighteenth  Con¬ 
gress,  in  December,  1823,  the  President  of  the  United  States,  in  his 
message  to  Congress,  having  direct  reference  to  the  said*  convention, 
and  its  proceedings  in  the  month  of  November  preceding,  mentioned, 
with  decided  approbation,  the  plan  of  the  Chesapeake  and  Ohio  Ca¬ 
nal,  as  having  been  suggested  by  many  patriotic  and  enlightened 
citizens,  and  recommended  an  adequate  appropriation  for  the  em¬ 
ployment  of  a  suitable  number  of  officers  of  the  corps  of  Engineers 
to  examine  the  ground  and  report  their  opinion  thereon  ;  and,  also, 
to  extend  their  examination  to  the  several  routes  through  which  the 
waters  of  the  Ohio  may  be  connected,  by  canals,  with  those  of  Lake 
Erie- 

(15.)  This,  among  other  important  objects  of  internal  improve¬ 
ment,  Laving  been  thus  officially  brought  before  Congress,  the  whole 
subject  was  referred  to  a  committee  of  that  body,  called  the  Com¬ 
mittee  on  Roads  and  Canals,  who,  at  the  same  session,  reported  a 
bill  which  was  passed  on  the  thirtieth  of  April,  1824,  appropriating 
the  sum  of  thirty  thousand  dollars  for  the  purpose  of  procuring  the 
necessary  surveys,  plans,  and  estimates,  upon  the  subject  of  roads 
ind  canals.  In  *he  month  of  May  following,  the  President  of  the 
Jnited  States  appointed,  from  among  the  corps  of  Engineers,  and 
he  Topographical  and  Civil  Engineers  in  the  service  of  the  United 
tates,  a  Board  of  Internal  Improvement,  with  assistants,  to  super- 
Rend  the  execution  of  the  provisions  of  the  said  act;  and  attached 
>  the  said  Board  several  officers  of  the  corps  of  Engineers  and  of 
\e  Topographical  Engineers,  with  sundry  civil  engineers  and  sur- 
^yors  in  the  service  of  the  United  States,  to  perform  the  practical 
derations  in  the  field,  under  the  direction  of  the  Board. 

(16.)  The  Board  was  instructed  “to  make  an  immediate  recon- 
rissance  of  the  country  between  the  tide  waters  of  the  Potomac  and 
ti  head  of  steam-boat  navigation  of  the  Ohio,  and  between  the  Ohio 
ai  Lake  Erie,  for  the  purpose  of  ascertaining  the  practicability  of 
aommunication  between  those  points,  of  designating  the  most  suit- 
ae  route  for  the  same,  and  of  forming  plans  and  estimates ,  in  detail. 


116 


of  the  expense  of  execution*”  The  Board  was  also  instructed  to  use 
every  possible  exertion  to  have  their  report  on  this  important  line  of 
communication  prepared  in  time  to  be  submitted  to  Congress  at  their 
next  session.  These  examinations  and  surveys  were  prosecuted  with 
the  utmost  vigor  and  diligence;  and,  on  the  14th  of  February,  1825, 
the  President  of  the  United  States  communicated,  in  a  special  mes¬ 
sage  to  both  Houses  of  Congress,  the  result  of  the  labors  of  the  Board 
and  their  assistant  corps,  as  far  as  they  had  then  proceeded ;  which 
was  immediately  printed  and  published  by  order  of  each  House  re¬ 
spectively.  These  operations  were  resumed  and  completed,  under 
the  direction  of  the  Board,  in  the  ensuing  season,  and  a  detailed  re¬ 
port  of  the  same  made  by  the  Board  to  the  Chief  Engineer,  on  the 
23d  day  of  October,  1826  ;  which  was,  in  like  manner,  communicated 
to  both  Houses  of  Congress,  in  special  messages  from  the  President, 
on  the  7th  of  December,  1826,  and,  in  like  manner,  immediately  pub¬ 
lished  and  printed  by  order  of  each  House.  These  several  reports 
were  accompanied  by  detailed  descriptions  and  surveys,  and  large 
maps  and  profiles ;  and  exhibited,  with  the  utmost  clearness  and 
minuteness,  the  whole  route  of  the  canal  from  Georgetown  and  the 
head  of  the  tide  water  of  the  Potomac  to  Cumberland,  and  thence  to 
its  western  termination  ;  the  plans  and  various  sections  of  the  canal, 
the  geography  and  topography  of  the  ground  through  which  it  pass¬ 
ed,  with  the  detailed  estimates  of  its  cost,  including  the  section  of  the 
canal  from  the  head  of  tide  water  to  Cumberland ;  and  minutely  ex¬ 
hibiting  its  course,  and  its  various  subdivisions  and  sections,  on  the 
western  and  northern,  or,  as  expressed  by  the  engineers,  the  left  bank 
of  the  river  between  those  points.  The  printing  of  this  last  report 
having  been  expedited  by  the  printers  to  Congress,  in  anticipation  of 
the  President’s  message,  and  of  the  orders  of  the  two  Houses,  seve¬ 
ral  copies  of  the  same  were  laid  before  the  said  convention,  at  its  se¬ 
cond  session,  by  direction  of  the  Secretary  at  War,  and  formed  the 
ground  work  of  the  proceedings  of  that  body  and  its  committee,  to¬ 
wards  a  corrected  estimate  of  the  cost  of  the  canal ;  the  high  esti¬ 
mates  of  the  cost,  given  by  the  Board  of  Internal  Improvement,  be 
ing  considered  as  founded  on  erroneous  data. 

(17.)  During  that  same  session  of  Congress,  several  members  o 
the  House  of  Representatives,  considering  the  disagreement  betweei 
the  estimates  of  the  Convention  and  those  of  the  Board  of  Interna 
Improvement,  and  the  necessity  of  the  most  exact  preparatory  esti 
mates,  as  well  for  the  success  of  the  various  applications  to  Cor 
gress  and  to  the  States,  for  subscriptions  to  the  stock  of  the  Cana 
and  other  aids,  as  for  the  general  recommendation  of  the  plan  to  t\ 
public,  requested  the  President  to  submit  these  estimates  to  the  rev 
sion  of  practical  civil  engineers,  of  long-tried  experience  and  ski. 
The  President  accordingly  appointed  James  Geddes  and  Nathan 
Roberts,  two  eminent  civil  engineers,  who,  to  great  profession! 
skill,  added  a  long  experience  in  the  practical  execution  of  otlr 
works  of  a  similar  description,  to  view  and  resurvey  the  route  of  te 
said  canal,  and  revise  the  estimates  of  its  cost.  This  duty  was  pe 


117 


formed  by  these  engineers,  with  all  diligence  and  despatch  ;  and 
their  detailed  report  of  their  surveys  and  estimates  of  the  same,  from 
Cumberland,  or  about  one  mile  below  Cumberland,  to  Georgetown, 
was  duly  returned  to  the  Engineer  Department,  accompanied  by  de¬ 
tailed  descriptions,  surveys  and  maps  of  the  route  and  site  of  the  ca¬ 
nal,  between  those  points.  This  last  report  and  its  results  were5 
largely  quoted  and  commented  on  in  a  report  of  the  Committee 
on  Roads  and  Canals,  in  the  House  of  Representatives  of  the  United 
States,  on  the  11th  February,  1828,  which  report  of  the  said  Com¬ 
mittee  was  then  immediately  printed  and  published,  by  order  of  the 
House,  in  the  due  course  of  its  proceedings  ;  and  on  the  26th  $f  the 
same  month,  a  resolution  passed  the  House,  calling  upon  the  Secreta¬ 
ry  of  War  for  the  report,  at  large,  of  the  said  civil  engineers  ;  and 
the  same  was  accordingly  transmitted  to  the  House  on  the  10th  of 
March  following  ;  and  then  immediately  printed  and  published  by 
order  of  the  House. 

(18. )  And  these  Respondents,  further  answering,  say,  that  upon 
the  completion  of  their  charter  by  the  act  of  Congress  passed  on  the 
3d  March,  1825,  assenting  to  and  confirming  the  acts  of  Virginia  and 
Maryland,  commissioners  were  duly  appointed  by  the  Executives  of 
Virginia  and  Maryland,  and  the  Government  of  the  United  States, 
pursuant  to  the  directions  of  the  charter,  to  open  books  for  receiving 
subscriptions  to  the  capital  stock  of  the  Chesapeake  and  Ohio  Canal 
Company  ;  and  the  said  Commissioners,  in  pursuance  and  execution 
of  their  appointment  and  authority,  on  the  20th  of  August,  1827, 
published  due  notice  that  such  books  would  be  open  at  various  places 
in  the  United  States,  on  the  1st  of  October  then  next  ensuing; 
which  notice  was  published  weekly  in  various  places,  at  or  as  near 
as  practicable,  the  respective  places  Avhere  the  books  were  to  be 
severally  opened ;  and  among  others  in  the  city  of  Baltimore ;  a 
copy  of  that  published  iri  the  National  Intelligencer,  at  the  City  of 
Washington,  is  annexed  ;  and  the  others  were  in  the  like  form,  only 
designating  other  Banks  or  Agents,  and  other  places  for  receiving 
the  subscriptions  in  the  different  sets  of  books,  all  to  be  opened  on 
the  same  day.  The  opening  of  the  books  had  been  so  long  postponed, 
at  the  request  of  the  central  committee  of  the  said  convention,  in  or¬ 
der  to  obtain,  in  the  first  instance,  the  most  satisfactory  estimates  of 
the  cost  of  the  canal  ;  in  the  mean  time  the  conflicting  estimates  of 
the  Board  of  Internal  Improvement  and  of  the  said  Canal  Convention 
were  before  the  public  ;  aad  the  Engineers,  Geddes  and  Roberts, 
were  then  engaged  in  their  surveys  of  the  route  and  revision  of  thS 
estimates  ;  whose  report,  though  not  then  completed,  would,  as  was 
well  understood,  confirm,  upon  the  most  unquestionable  data  and 
calculations,  the  lowest  estimates. 

(19.)  Pursuant  to  the  said  notice,  the  subscription  books  were  duly 
opened,  on  the  said  first  of  October,  1827,  and  subscriptions  to  a 
large  amount  were  received  :  a  correct  summary  of  the  different 

amounts  whereof,  at  different  periods,  from  the  - -  day  of 

- ,  till  the  -  day  of - ,  is  hereto  annexed. 


118 


(20.)  The  subscriptions  on  the  part  of  the  United  States,  and  of 
the  State  of  Maryland,  as  authorized  by  their  respective  laws,  have 
been  duly  fulfilled,  upon  the  conditions  respectively  prescribed  by 
them,  and  were  made  at  the  respective  dates  mentioned  in  the  said 
summary.  Notwithstanding  the  subscriptions  amounted,  so  much 
sooner  to  the  one-fourth  of  the  capital  stock,  required  by  the  charter, 
to  give  immediate  effect  to  the  incorporation  of  the  Company  ;  it  was 
deemed  advisable  to  postpone  a  call  of  the  stockholders,  for  the 
election  of  their  President  and  Directors,  in  the  certain  expectation 
of  an  act,  at  the  then  ensuing  session  of  Congress,  authorizing  a 
subscription  on  the  part  of  the  United  States  ;  and  in  order  to  give  an 
opportunity  to  Maryland  and  the  United  States,  on  the  completion  of 
their  respective  subscription,  to  vote  at  the  said  elections,  and  on 
other  matters  to  be  brought  before  the  meeting.  The  said  Commis¬ 
sioners,  accordingly,  on  the  5th  day  of  March,  1828,  called  a  meet¬ 
ing  of  the  stockholders,  for  the  purpose  of  electing  their  President 
and  Directors,  on  the  7th  day  of  April  next  ensuing  ;  by  which  day 
it  was  expected  the  two  subscriptions  just  mentioned  would  be  com¬ 
pleted,  by  means  of  a  bill  then  pending  in  Congress.  But  some  un¬ 
expected  delays  in  the  passage  of  this  bill  occurring,  the  call  was 
postponed  ;  and  on  the  26th  day  of  May  thereafter  (the  said  bill 
authorizing  the  subscription  of  one  million  of  dollars  on  the  part 
of  the  United  States  having  passed  on  the  24th  of  the  same  month) 
the  call  was  renewed,  and  the  general  meeting  of  the  stockholders 
appointed  for  the  20th  of  June,  1828.  These  calls  of  the  general 
meeting  of  the  stockholders,  and  the  intermediate  postponement  of  the 
first,  were  duly  published  by  the  said  commissioners,  in  several  pub¬ 
lic  prints,  or  newspapers,  at  various  places  in  the  United  States,  and 
among  others,  at  the  city  of  Baltimore,  pursuant  to  the  directions  of 
the  charter;  copies  of  which,  as  published  in  the  National  Intelli¬ 
gencer  at  the  city  of  Washington,  are  hereto  annexed. 

(21.)  Pursuant  to  the  last  of  said  calls,  the  stockholders  assem¬ 
bled  at  the  City  Hall,  in  the  City  of  Washington,  on  the  20th  day  of 
June,  1828,  and  duly  elected  their  President  and  Directors,  who 
were  immediately  organized  according  to  law,  and  have  ever  since 
been  diligently  engaged  in  prosecuting  the  execution  of  the  canal, 
pursuant  to  their  charter,  w  ith  all  practicable  vigor  and  despatch. 

(22.)  The  Potomac  Company,  by  their  several  authentic  and  va¬ 
lid  acts,  in  their  corporate  capacity,  on  the  1 6th  of  May,  1825,  the 
10th  of  July,  4th  and  1 5th  of  August,  1828,  duly  declared  their  as¬ 
sent  to  the  provisions  of  the  said  charter  of  the  Chesapeake  and  Ohio 
Canal  Company,  in  the  manner  prescribed  by  that  charter ;  and  duly 
surrendered  their  charter,  and  conveyed,  in  due  form  of  law,  to  the 
Chesapeake  and  Ohio  Canal  Company,  all  the  property,  rights,  and 
privileges  by  them  owned  and  possessed  under  their  charter;  which 
surrender  and  transfer  was  duiy  accepted  by  the  Chesapeake  and  Ohio 
Canal  Company  ;  true  copies  of  all  which  several  acts  of  the  two 
Companies  are  hereto  annexed  as  part  of  this  answer. 

(2S.)  The  last  named  Company,  also,  at  their  said  general  meeting 


119 


in  June,  1828,  anti  at  several  adjourned  meetings  of  the  same,  in  June 
and  July  of  that  year,  adopted  and  passed,  among  others,  the  several 
resolutions,  by-laws,  and  regulations,  printed  copies  of  which  are  an¬ 
nexed  among  the  said  scheduled  documents ;  and  among  these,  the  an¬ 
nexed  resolution  adopting  the  route  and  site  of  the  canal  surveyed 
and  laid  down  by  the  United  States  Engineers,  and  by  Messrs.  Geddes 
and  Roberts,  &c. 

(24.)  Among  the  works  done  under  the  orders  of  the  President  and 
Directors,  since  the  organization  of  this  Company  they  have  caused 
detailed  plans  of  their  canal  to  be  surveyed  and  laid  down  by  their 
engineers  in  a  practical  form  for  contractors,  upon  the  route  before 
surveyed  and  laid  down  under  the  direction  of  the  said  Board  of  In¬ 
ternal  Improvement,  and  by  Messrs.  Geddes  &  Roberts,  as  aforesaid, 
from  Georgetown,  in  the  District  of  Columbia,  to  Williamsport,  in 
Washington  county, Maryland;  and  for  the  distance  of  about  48  miles 
from  Georgetown,  up  to  within  about  a  half  mile  of  the  Point  of  Rocks, 
or  foot  of  the  Catoctin  Mountain,  the  canal  has  been  actually  put  under 
contract,  for  execution,  upon  these  plans  ;  and  the  work  was  actually 
commenced  by  the  Contractors,  in  September  last,  has  ever  since 
been  diligently  and  efficiently  prosecuted  by  them,  and  such  progress 
made  in  it,  as  leaves  no  rational  doubt  of  its  completion,  upon  the 
most  enlarged  scale  and  improved  plan  contemplated  by  its  projec¬ 
tors,  far  within  the  time  prescribed  by  the  charter ;  and  the  said 
President  and  Directors  would,  before  now,  have  had  at  least  so 
much  more  of  the  said  canal,  as  the  section  from  the  Point  of  Rocks, 
in  Frederick,  to  Williamsport,  in  Washington,  under  contract,  and 
in  actual  progress,  but  for  the  interruptions  thrown  in  their  way  by 
the  complainants,  on  the  route  from  the  former  Point  to  Cumberland. 
The  Respondents,  by  way  of  further  illustrating  the  plan  and  route 
of  their  canal,  refer  to  the  annexed  copies  of  the  plans  and  surveys  of 
the  same,  from  the  same  Point  of  Rocks  to  Williamsport,  executed 
by  their  engineer,  which  they  pray  may  be  taken  as  part  of  this  their 
answer. 

(25.)  As  to  the  pretensions  of  the  complainants  to  interpose  and 
oust  these  Respondents  of  their  priority  of  selection  and  their  vested 
right  in  the  route  of  their  canal,  and  to  intrude  the  Rail-Road  of 
the  complainants  upon  the  same,  these  Respondents  say,  the  Legis¬ 
lature  of  Maryland  never  contemplated,  by  the  charter  granted  to 
the  complainants,  any  interference  with  the  route  selected  for  the 
canal ;  and  if  there  be  involved  in  the  terms  of  that  charter  any 
covert  or  latent  construction,  or  operation  in  practice,  authorizing 
such  interference,  (which  these  Respondents  are  well  advised  there  is 
not)  and  if  the  parties,  who  projected  the  said  Rail-Road,  and 
actively  promoted  and  solicited  and  finally  obtained  and  now  enjoy 
the  charter  for  the  same,  originally  intended  that  any  such  latent 
construction,  or  operation  in  practice,  should  be  involved  in  its 
terms,  with  a  premeditated  design  to  press  the  advantage  of  such  in 
their  future  operations  under  their  charter  (which  these  Respondents 
by  no  means  charge,  but  on  the  contrary  presume  the  said  parties 


120 


were  at  the  time  direct  and  sincere  in  their  professed  object,  and  in 
the  ostensible  purpose  and  intent  for  which  they  solicited  their  char¬ 
ter)  then  it  would  be  manifest  that  the  Legislature  and  people  of 
Maryland  were  misled  and  deceived  into  the  grant  of  a  charter  for 
the  said  Rail-Road,  contravening  the  well  known  views  and  estab¬ 
lished  policy  and  interests  of  the  State,  long  avowed  and  partially 
acted  on  by  the  Legislature,  and  the  solemn  faith  and  compacts  of 
the  State,  as  well  with  her  co-sovereigns,  Virginia,  Pennsylvania, 
and  the  United  States,  as  with  the  Potomac  Company,  with  the 
Chesapeake  and  Ohio  Canal  Company,  and  with  the  public  at  large. 
For  not  only  was  any  intent  (if  it  existed)  to  supersede  or  interfere 
with  the  proper  route  and  site  of  the  canal,  and  occupy  the  same 
with  the  Rail- Road,  kept  out  of  view,  and  reserved  and  concealed 
in  the  minds  of  the  parties  who  solicited  and  obtained  the  Rail-Road 
charter,  but  it  was  studiously  and  elaborately  masked,  by  ilieir 
openly  professing,  and  setting  up  a  different  and  shorter  route  for 
the  Rail-Road,  than  any  practicable  route  for  the  canal  :  and  upon 
this  very  difference  in  the  routes,  they  valued  themselves  as  having 
projected  an  improved  mode  of  intercourse  with  the  west,  very 
superior  to  the  canal. 

(26.)  The  project  of  the  said  Rail-Road  was  originated  and  set  in 
motion  at  a  meeting  of  a  number  of  the  citizens  of  Baltimore,  held 
at  that  city,  on  the  12th  and  19th  of  February,  1827.  The  proceed¬ 
ings  of  that  meeting,  with  a  report  of  a  committee  unanimously  ap¬ 
proved  by  the  meeting,  were  printed  and  published  by  its  authority; 
the  whole  train  of  the  elaborate  reasonings  of  which  tends  to  estab¬ 
lish  two  points  :  1st.  The  intrinsic  advantages,  in  point  of  expedi¬ 
tion  and  convenience  of  a  Rail-Road  over  a  canal.  2dly.  The  par¬ 
ticular  advantages  of  the  projected  Rail-Road  from  Baltimore  to  the 
Ohio,  over  the  Chesapeake  and  Ohio  Canal ;  among  the  most  decided 
of  which  was,  that  the  former  was  to  reach  the  western  trade,  by  a 
different  and  shorter  route.  Upon  this  latter  point,  the  most  minute 
calculations  are  made  of  the  differences,  in  distance  and  time,  be¬ 
tween  the  known  route  of  the  canal  and  the  intended  route  of  the 
Rail-Road. 

(27.)  The  direct  route  proposed  for  the  Rail-Road,  as  contrasted 
with  the  circuitous  route  chosen  for  the  canal,  was  vauntingly  print¬ 
ed  in  capitals ;  and  its  various  advantages  reiterated  in  every  form 
calculated  to  illustrate  the  superiority  of  the  Rail-Road  over  the  ca¬ 
nal.  The  charter  of  the  Rail-Road  Company  was  immediately  so¬ 
licited  and  obtained  of  the  Legislature  of  Maryland,  then  in  session, 
by  the  committee,  or  some  of  them,  named  in  the  said  printed  pro¬ 
ceedings  ;  the  pamphlet  containing  the  said  proceedings,  was  circu¬ 
lated  among  the  members  of  the  Legislature,  and  the  same  topics 
were  enforced  and  illustrated  by  the  committee  in  the  course  of  their 
solicitations.  All  the  active  and  influential  persons  composing  the 
said  meeting  and  its  committees,  became  members  of  the  corporation 
when  the  said  Rail-Koad  Company  became  incorporated;  and  the 
President  and  Directors  of  that  Company  were  chosen  from  among 


the  same  description  of  persons  ;  and  so  continued  to  the  time  of  the 
filing  of  the  complainants’ said  bills,  and  yet  so  continue,  as  these 
Respondents  are  credibly  and  certainly  informed,  and  do  verily  be¬ 
lieve. 

(28.)  One  of  the  said  pamphlets,  so  published  by  the  said  meeting, 
or  by  its  committee,  is  hereto  annexed  among  the  schedule  docu¬ 
ments  ;  and  to  that  as  well  as  to  the  representations  and  memorials 
of  the  said  Rail-Road  committee,  to  the  Legislature,  and  the  pro¬ 
ceedings  of  the  Legislature  thereon,  preparatory  to  the  grant  of  the 
said  Rail-Road  charter:  these  Respondents  pray  that  reference  may 
be  had  as  part  and  parcel  of  this  answer. 

(29.)  These  Respondents  are  further  credibly  informed,  and  verily 
believe,  that,  not  only  was  all  idea  of  any  interference  with  the  site 
or  route  of  the  canal  kept  out  of  view,  and  masked  by  the  general 
proposition  of  a  different  route  for  the  Rail-Road,  studiously  im¬ 
pressed  on  the  Legislature,  and  promulgated  to  the  public,  as  one  of 
the  pre-eminent  merits  of  the  Rail-Road  project,  but  that  the  said  par¬ 
ties,  so  engaged  and  entrusted  in  that  project,  and  in  the  promotion 
of  it  as  aforesaid,  and  now  claiming  the  benefits  of  the  charter  for 
the  same,  did,  both  before  and  after  the  grant  of  that  charter,  and 
while  the  same  was  in  a  course  of  solicitation  before  the  Legisla¬ 
ture,  and  down  to  a  period  considerably  posterior  to  the  subscription 
of  the  stock,  and  the  formation  of  the  Company,  even  specify  the 
difference  between  the  two  routes,  both  to  the  members  of  the  Legis¬ 
lature,  and  otherwise  to  the  public ;  that  is,  a  direct  route  from 
Baltimore  to  the  Ohio ;  cutting  down  the  hills  between  Baltimore 
and  theMonocacy,50  or  60  feet, by  machinery, and  forming  an  inclin¬ 
ed  plane  to  the  Monocafcy ;  and  then  crossing  the  mountains  in  the 
direct  route  to  the  Ohio,  by  a  number  of  stationary  steam  engines, 
computed  at  the  number  of  a  hundred ;  that  afterwards,  in  the  win¬ 
ter  of  1827-8,  when  the  complainants  were  soliciting  of  the  Legis¬ 
lature,  the  law  authorizing  a  subscription  on  the  part  of  the  State, 
to  the  Rail-Road  stock,  the  President  of  the  said  Rail-Road  Com¬ 
pany,  in  behalf  of  the  Company,  assured  the  members  of  the  Legis¬ 
lature,  and  especially  the  members  from  the  Western  counties,  that 
the  Rail-Road  would  pass  by  Westminister,  through  Harman’s  Gap 
to  Williamsport,  and  actually  accepted  the  services  of  Mr.  James 
Johnson,  of  Frederick,  to  explore  the  mountains  on  that  route;  that 
the  said  parties,  on  all  these  occasions,  and  continually,  until  they 
formed  their  sudden  resolution  in  May,  1828,  to  pounce  upon  the 
route  and  site  chosen  for  the  canal,  publicly  and  distinctly  disclaim¬ 
ed  any  rivalship  or  interference  with  the  canal ;  and  gave  out  that 
the  comparative  directness  and  shortness  of  the  route  of  the  Rail- 
Road,  and  its  other  advantages, would  place  it  above  all  competition 
from  the  canal. 

(30.)  If,  on  the  other  hand,  the  new  route  now  proposed  for  the 
Rail-Road,  and  the  idea  of  ousting  the  Chesapeake  and  Ohio  Canal 
of  its  chosen  and  proper  route  were  after-thoughts,  originating  with 
the  complainants,  or  suggested  to  them,  after  their  organization  as  a 
14 


122 


body  corporate  under  their  charter,  then  it  is  equally  a  perversion 
and  abuse,  in  practice,  of  the  original  and  genuine  intent  of  their 
charter,  and  the  privileges  which  that  instrument  was  designed  to 
confer  on  them.  These  Respondents  are  not  certainly  or  precisely 
informed  at  what  time  such  change  in  their  views  was  effected,  or 
upon  what  ostensible  grounds ;  but  these  Respondents  have  good 
reason  to  think  and  believe,  and  do  verily  think  and  believe,  that  it 
was  not  until  after  the  advertisements  of  the  said  Commissioners 
notifying  a  call  of  the  stockholders  of  the  Chesapeake  and  Ohio  Ca¬ 
nal  Company,  and  the  near  prospect  of  large  subscriptions  to  the 
stock  of  that  Company  from  the  State  of  Maryland  and  the  United 
States,  gave  sure  promise  of  its  speedy  and  efficient  organization, 
and  suggested  to  the  complainants  the  policy  of  some  bold  ,and  ex¬ 
traordinary  measures  to  defeat  it.  The  actual  operations  of  the 
complainants,  through  their  agents,  in  appropriating  to  themselves 
the  route  and  site  chosen  for  the  canal,  did  not  commence,  as  these 
Respondents  have  good  reason  to  believe,  and  do  verily  believe,  and 
so  far  as  they  have  been  able  to  ascertain  from  the  documents  and 
exhibits  of  the  complainants,  or  other  evidence,  till  some  time  about 
the  middle  of  May,  1828. 

(31.)  These  respondents  are  further  credibly  and  certainly  in¬ 
formed,  and  do  verily  believe,  that  the  real  tendency  and  effect  of 
those  operations,  as  an  adversary  interference  with  the  canal,  were 
studiously  masked  and  concealed  by  the  complainants  and  their 
agents ;  and  that  they  pushed  them  on  with  unusual  and  otherwise 
uncalled  for  hurry  and  precipitation,  for  the  direct  and  concerted 
purpose  of  completely  forestalling  the  chosen  and  well  known  route 
and  site  of  the  canal,  before  any  of  the  persons,  materially  interested 
in  the  conservation  of  its  rights,  could  have  notice ;  and  with  such 
views  and  intents,  that  the  agents,  who  were  employed  by  the  com¬ 
plainants  in  making  their  locations  of  the  rail-road  on  the  route  of 
the  canal,  gave  out  to  the  people  in  the  neighbourhood  who  witnessed 
their  proceedings,  that  they  were  merely  making  experiments,  and 
intended  jio  interference  with  the  canal ;  and  some  of  the  persons 
with  whom  contracts  were  made  for  cessions  of  their  lands,  were 
also  informed  by  such  agents,  that  the  only  intent  and  effect  of  such 
contracts  were  to  give  permission  to  the  surveyors  of  the  rail-road  to 
pass  through.  So  much,  however,  is  certain,  that  it  was  not  till  about 
the  7th  of  June,  1828,  that  the  persons  principally  concerned  in  the 
conservation,  ad  interim ,  of  the  rights  and  interests  of  the  canal,  (as 
the  said  central  committee,  the  said  commissioners  appointed  to  open 
subscription  books,  and  call  the  first  meeting  of  the  stockholders,  the 
Secretary  of  the  Treasury  representing  the  interest  of  the  United 
States  in  the  stock  of  the  company,  and  other  principal  stockholders) 
received  with  the  utmost  surprise,  the  first  information  that  the 
agents  of  the  complainants  were  proceeding,  with  the  utmost  haste 
and  secrecy,  in  an  attempt  to  forestall  the  chosen  route  and  site  of 
the  canal,  by  making  their  surveys  upon  the  most  important  and 
indispensable  parts  of  it,  and  taking  up  the  ground  by  contracts 


128 


with  the  adjacent  proprietors.  Measures  were  immediately  taken  at 
Washington,  by  the  persons  principally  interested,  and  with  the 
concurrence  of  the  Secretary  of  the  Treasury,  to  despatch  proper 
agents  and  counsel  to  ascertain  the  true  state  of  the  case,  and  to 
take  the  proper  measures  for  the  protection  of  the  rights  of  the 
Canal  Company.  The  bill  of  injunction,  in  the  name  of  this  com¬ 
pany  and  of  the  Potomac  Company,  against  the  now  complainants, 
&c.  in  Washington  County  Court,  and  the  injunction  thereon 
grounded,  on  the  10th  of  June,  1828,  to  which  the  complainants 
have  referred  in  their  said  bills,  were  the  result  of  those  measures. 
To  that  bill,  a  copy  of  which  is  hereto  annexed,  these  respondents 
also  refer,  and  pray  that  it  may  be  taken  as  part  of  this  answer ; 
now  here  re-asserting  the  material  facts  therein  stated,  and  all  the 
rights  and  immunities  therein  claimed  and  asserted  on  behalf  of  this 
company  ;  all  of  which  they  pray  that  they  may  have  the  like  benefit, 
as  if  ever  so  formally  averred  or  pleaded  in  this  answer. 

(32.)  These  respondents  further  answering  say,  that  at  the  Point 
of  rocks,  where  'the  Potomac  intersects  the  ridge  of  the  Catoctin 
mountain,  and  where  the  pretended  route  of  the  said  rail-road  is 
described  by  the  complainants  in  their  said  bills  to  strike  tfie  Poto¬ 
mac  river,  there  is  one  of  those  narrow  passes  in  the  actual  route  and 
site  of  the  canal,  as  officially  and  definitively  selected,  surveyed  and 
and  laid  down  as  aforesaid,  which  presents  no  choice  of  ground  for 
the  canal  ;  but  where  for  a  considerable  distance  up  the  river  along 
the  foot  of  the  mountain  and  its  spurs,  the  canal  is  confined,  by  the 
nature  of  the  ground,  within  certain  primeval  and  unremovable 
barriers  ;  as  is  more  particularly  shown  and  illustrated  by  the  topo¬ 
graphical  descriptions,  maps  and  profiles  of  the  engineers,  herewith 
exhibited  and  above  referred  to.  Through  the  whole  of  this  pass, 
the  space  between  the  jutting  and  precipitous  rocks,  on  the  one  hand, 
and  the  river  on  the  other,  is  so  narrow,  that  in  order  to  obtain  the 
proper  and  necessary  breadth  for  the  canal  and  its  towing  path,  a 
solid  and  wide  wall  must  he  constructed  in  the  river ; — and  if  the 
canal  be  intercepted  and  cut  off  by  the  rail-road,  or  otherwise,  from 
that9ingle  route  through  this  pass,  it  must  be  completely  intercepted 
and  cut  off  from  the  whole  of  its  routes  above  ;  and  be,  either 
entirely  stopped  and  defeated,  or  compelled  to  the  precarious,  dan¬ 
gerous,  and  enormously  expensive,  and  every  way  inconvenient  and 
burthensome  expedient  of  crossing  to  the  opposite  side  of  the  river 
on  an  aqueduct;  and  then,  in  order  to  regain  its  route  to  its  western 
terminus,  of  recrossing  the  river  on  another  such  aqueduct,  at  such 
unknown  and  uncertain  point  above,  certainly  not  lower  than  Cum¬ 
berland,  as  where  it  may  please  the  complainants  to  allow  them  verge 
and  space  enough.  Through  all  the  space  between  these  two  points, 
on  the  southern  and  eastern  banks  of  the  river,  these  respondents 
will  then  have  to  explore  a  new  route  and  site  for  their  canal;  all 
the  elaborate  reconnoissances,  surveys,  maps,  plans,  &c.  by  which  the 
present  and  appropriate  route  and  site  of  the  canal  have  been  de¬ 
termined;  all  the  estimates  already  made  of  its  cost,  inseparable  as 


124 


are  their  data  from  the  localities  of  the  actual  route  and  site  of  the 
canal  so  determined,  and  upon  the  faith  of  which  and  of  the  already 
ascertained  practicability  of  that  route,  the  subscriptions  to  the  stock 
of  the  canal  have  been  made  ;  all  the  labour  and  expenses  of  years 
consumed  by  the  engineers  of  the  United  States  and  of  this  company 
and  their  coadjutors,  in  ascertaining  these  results,  must  then  be 
utterly  wasted  and  thrown  away ;  and  the  whole  process  be  gone 
over  again,  on  the  opposite  side  of  the  river,  at  an  immense  increase 
of  expense  and  loss  of  time  to  the  said  canal  company,  and  to  the 
utter  peril  of  the  franchise  bestowed  on  them  by  their  charter,  and 
every  way  to  their  inconvenience  and  oppression.  Besides,  if  it 
were  possible  (which  it  is  not)  for  the  said  canal  company,  after 
deserting  their  appropriate  route,  as  already  specifically  selected, 
surveyed  and  laid  down,  and  conceding  to  the  rail-road  the  choice 
of  the  site  next  the  river,  at  any  labour  or  expense  within  the  reason¬ 
able  compass  of  human  means,  at  all  commensurate  with  the  object, 
to  lay  off  and  conduct  the  canal  outside  of  the  rail-road,  by  cutting 
down  the  sides  of  the  mountains  and  rocky  precipices,  that  bound 
their  operation  through  the  said  pass,  and  through  many  other  nar¬ 
row  and  difficult  passes  of  a  like  description,  and  presenting  some 
of  them  equal,  and  others  nearly  equal  difficulties  on  the  route  in 
controversy,  from  the  Point  of  Rocks  to  Cumberland,  to  the  proper 
level,  and  of  the  proper  breadth  for  the  canal  and  its  towing  path,  so 
as  to  keep  the  canal  on  the  same  side  of  the  river,  with  the  rail-road 
interposed  between  it  and  the  river  all  the  way  between  those  points ; 
still  the  inconveniences  and  impediments  to  the  proper  construction, 
supply  and  use  of  the  canal,  would  be  immense  and  incalculable,  if 
not  insuperable,  by  its  being  cut  off  and  intercepted,  in  so  great  a 
portion  of  its  route,  from  its  cognate  source  and  appendage  the 
river,  and  the  numerous  and  necessary  feeders  and  communications 
between  it  and  the  river;  the  frequent  and  continual  recurring  neces¬ 
sity  of  such  communications  throughout  that  route,  being  indispensa¬ 
ble  alike  to  the  proper  construction  of  the  canal  and  its  appendages,  as 
to  the  purposes  of  intercourse,  commerce  and  navigation,  for  which 
alone  it  was  and  is  designed.  The  above  mentioned  pass  at  the  Point 
of  Rocks,  and  for  some  distance  above  the  point  so  called,  is  not  the 
only  one  of  that  description  and  presenting  the  like  narrow  and  diffi¬ 
cult  bounds  to  the  canal,  on  the  route  in  controversy  from  that  point 
to  Cumberland  ;  but  there  are  numerous  others  on  that  route,  where 
the  Potomac  breaks  through  the  numerous  ridges,  mountains  and 
rocky  precipices,  where  it  is  hemmed  in  by  rocky  and  high  banks, 
with  a  very  narrow  space  between ;  and  where  in  some  instances 
equal,  and,  in  other  instances,  nearly  equal  difficulty,  labor  and 
expense  to  open  and  improve  the  site  for  the  passage  of  the  canal  and 
its  appendages,  occur  as  at  the  Point  of  Rocks  ;  as  is  more  particu¬ 
larly  shown  and  illustrated  by  the  documents  above  referred  to  and 
cited  for  the  topography  of  this  last  mentioned  pass. 

(33.)  These  respondents  submit  to  the  equity  and  discretion  of 
his  Court,  that  even  if  originally,  and  by  virtue  of  their  prior  grants 


125 


and  franchises,  they  had  no  priority  of  right  to  the  choice  and  selec¬ 
tion  of  the  route  and  site  of  their  canal,  along  the  margin  and  bank 
of  the  river  Potomac ;  if  no  authorized,  determinate,  and  binding 
selection  and  designation  of  such  route  and  site  had  been  made ;  and 
if  the  complainants  stood  on  a  foot  of  perfect  equality,  as  to  the  date 
and  origin  of  their  franchise;  still  the  preferable  right  of  this  com¬ 
pany  to  conduct  and  construct  their  canal  on  the  route  and  site  in 
controversy,  is  just  as  absolutely  determined  by  a  concurrence  of 
equitable  and  cogent  circumstances ;  by  the  intrinsic  qualities  and 
faculties  of  these  two  works,  and  by  their  respective  relations  to  the 
means,  the  objects  and  the  uses  of  their  construction  ;  and  to  the 
nature  of  the  obstructions  and  public  inconveniences  which  they  are 
designed  to  remove  by  artificial  means.  Because,  according  to  the 
complainants’  own  shewing,  and  the  facts  are  otherwise  true  and 
notorious,  they  have  the  choice  of  two  or  more  practicable  routes  for 
their  rail-road,  without  any  interference  with  the  canal,  or  connec¬ 
tion  with,  or  even  approximation  to  the  river ;  the  different  routes 
onl/  presenting  some  differences  in  the  comparative  labour  and  ex¬ 
pense  of  construction ;  and  these  compensated,  if  they  occur,  with 
any  considerable  increase,  on  the  more  northern  route  originally 
proposed  for  the  rail-road,  by  the  advantages  and  savings,  from 
directness  qf  course  and  shortness  of  distance,  as  the  principal  and 
leading  personages,  both  among  the  original  projectors  and  pro¬ 
moters,  and  the  present  managers  and  proprietors  of  the  rail-road, 
have  repeatedly  averred  and  publicly  contended  :  the  principle,  and 
the  operation  of  the  lifting  power  of  stationary  steam  engines,  by 
which  the  rail-road  overcomes  ascents,  and  gains  new  levels,  admit 
of  an  infinitely  greater  diversity  and  extent  of  application,  than 
that  of  the  canal,  circumscribed  and  limited  as  it  is  by  water  levels, 
and  arc  perfectly  practicable  and  convenient,  and  within  the  ordina¬ 
ry  compass  of  that  power,  either  to  overcome  all  the  necessary  as¬ 
cents  on  the  more  northern  and  direct  route  first  proposed  for  the 
said  rail-road  ;  or  if,  what  the  complainants  designate  the  southern 
and  circuitous  route  be  preferred  by  them,  to  assume,  with  ease  and 
convenience,  a  higher  level  than  the  canal,  on  that  «oute,  and  leave 
the  canal  ample  verge  and  room  between  the  rail-road  and  the  river  : 
there  is  no  necessary  or  proper  connection  or  dependence  between 
the  rail-road  and  the  river,  either  intrinsically,  as  regards  the  con¬ 
struction,  appendages  and  uses  of  the  rail-road,  or  relatively,  as  re¬ 
gards  the  purposes  of  intercourse,  trade  and  commerce,  which  the 
rail-road  was  designed  to  subserve;  whereas,  the  river  is,  as  it  were, 
the  life-blood  of  the  canal ;  and  continual  access  and  frequent  com¬ 
munication,  from  the  one  to  the  other,  are  inseparable,  from  the  very 
idea  of  the  canal  :  And  lastly,  the  complainants,  before  they  took 
any  step  towards  a  change  of  their  original  route  for  the  one  now  in 
controversy,  or  towards  any  claim  or  appropriation  of  the  latter,  or 
even  contemplated  any  such  change,  claim  or  appropriation,  had  the 
most  ample,  direct  and  conclusive  knowledge  and  notice  of  all  the 
steps  that  had  been  taken  to  designate  and  appropriate  this  same 


126 


route  for  the  canal,  they  had  the  most  certain  knowledge  that  every 
procedure,  practicable  in  the  nature  of  things,  had  been  adopted  to 
consummate  and  render  effectual  such  designation  and  appropriation 
of  the  canal  route  and  site,  both  before  and  after  the  consummation  of 
the  charter  to  the  said  canal  company,  by  the  passage  of  the  act  of  Con¬ 
gress,  confirming  it,  and  before  the  charter  of  the  Rail -Road  Compa¬ 
ny  was  either  enacted  or  projected ;  and  that  such  designation  and 
appropriation  of  the  route  and  site  of  the  canal,  its  ascertained 
practicabilit}'  and  facilities  of  execution  on  that  route,  and  the  esti¬ 
mate  of  its  capital  and  cost,  which  were  founded  on  the  local  circum¬ 
stances  of  that  route,  all  entered  into  the  considerations,  motives, 
and  terms  of  the  charter,  and  more  distinctly  of  the  subscriptions  to 
the  capital  stock  created  by  it ;  and  with  the  entire  notice  and  con¬ 
sciousness  of  all  these  circumstances,  the  complainants,  at  the  very 
moment  when  they  perceived  that  the  said  Canal  Company,  then 
legally  constituted  a  body  corporate,  werejust  coming  into  the  actual 
fruition  of  the  right  thus  claimed  and  secured  to  them,  took  advan¬ 
tage  of  their  want  of  executive  organization  to  forestall  and  oust 
them  of  that  right,  under  the  naked  pretext,  that  the  proprietary 
•  right  and  title  of  the  lands,  necessary  to  be  purchased  or  condemned 

of  individuals,  had  not  been  technically  vested  in  the  company.  But 
these  respondents  are  well  advised  by  counsel,  that  they  may,  law¬ 
fully  and  of  right,  maintain  before  all  courts  of  law  or  equity,  and 
in  all  other  places  whatsoever,  and  they  do  now  here  maintain,  that 
independent  of  any  prior  and  specific  location,  survey  or  appropria¬ 
tion.  of  any  precise  site  or  route  of  the  canal,  there  was  originally 
vested  in  and  guarantied  to  the  late  Potomac  Company,  by  virtue  of 
their  charter,  the  exclusive  privilege,  use  and  property  of  the  entire 
stream,  bed  and  channel  of  the  river  Potomac*  with  its  branches 
and  tributaries,  and  whatsoever,  as  part,  parcel  or  appendage  of  the 
river,  constituted  in  any  part  of  the  public  domain,  from  tide  water 
to  the  highest  place  practicable  for  navigation  on  the  north  branch 
of  that  river ;  and  over  and  above  these,  the  prior  and  exclusive  elec¬ 
tion,  pre-emption  and  appropriation  by  the  prescribed  modes  of  pur¬ 
chase  or  condemnation  from  all  the  adjacent  lands  of  the  individual 
proprietors,  all  along  the  banks,  cliffs  and  low  grounds  contiguous 
.  to  the  river,  and  within  the  proper  sphere  and  compass  of  any  of 
the  authorized  operations  of  the  company,  of  the  proper  ground 
for  the  route  and  site  of  the  canal  or  canals,  and  the  auxiliary 
works  and  appendages  of  the  same,  and  of  the  materials  for 
the  same,  contemplated  and  authorized  by  that  charter ;  that  this 
exclusive  right  and  priority  of  election,  pre-emption  and  ap¬ 
propriation,  extended  to  all  the  lands  of  individuals  and  public  do¬ 
mains,  within  the  precincts  of  any  of  the  actual  or  possible  operations 
ot  the  said  company,  authorized  by  their  said  charter;  and  that, 
within  those  precincts  no  other  corporation  in  present  or  future  exis¬ 
tence,  nor  any  other  description  or  body  of  men  whatever,  collectively 
or  individually,  had,  or  could  acquire  any  right  or  title,  under  any 
pretence  of  a  right  of  way,  road,  or  improvement  whatsoever. 


427 


public  or  private,  in  any  manner  to  restrict  or  confine  the  said  Potomac 
Company,  or  their  authorized  operations  under  their  charter,  to  any 
one  among  any  possible  number  of  locations  or  sites,  or  in  any  man¬ 
ner  to  diminish  or  circumscribe  their  free  choice  and  election  of  the 
same ;  far  less,  to  exclude  them  from  priority  in  the  choice  and  elec¬ 
tion  of  the  only,  or  of  the  most  eligible,  practicable  and  convenient 
and  still  less  of  previously  elected  and  designated  locations  or  sites 
for  the  proper  execution  of  the  works  authorized  by  their  charter. 
That  all  these  rights  and  privileges,  in  all  their  integrity,  force  and 
efficacy,  have  been,  and  are,  duly  and  indefensibly  transferred  to, 
and  vested  in  these  respondents,  by  virtue  of  their  said  charter,  and 
of  the  surrender  and  transfer  to  them  from  the  late  Potomac  Compa¬ 
ny  ;  with  such  extension  and  modification  as  the  terms  of  this  new 
charter,  and  the  extended  and  improved  scheme  and  plan  of  the  works 
thereby  authorized,  prescribe  or  require:  That,  independent  of  any 
proprietary  rights  or  corporate  privileges  and  immunities,  specifi¬ 
cally  derived  by  these  respondents  from  the  late  Potomac  Company, 
all  the  rights,  privileges  and  immunities  hereinbefore  described  or 
mentioned  as  vested  in  and  guarantied  to  the  Potomac  Company, 
and  all  the  analagous  rights,  privileges  and  immunities,  enlarged 
and  modified  in  conformity  to  the  scheme  and  provisions  of  the  new 
charter  of  these  respondents,  and  to  the  more  extended  and  compre* 
hensive  plan  of  the  works,  and  improvements  thereby  authorized, 
were  and  are,  indefeasibly  vested  in  and  guarantied  to  these  respon¬ 
dents,  by  the  sole  force  and  effect  of  their  own  charter  :  That  the 
charter  of  the  said  Rail  Road  Company,  does  not,  and  of  right,  could 
not,  in  terms,  abolish  or  take  away,  or  in  any  manner  diminish  or 
alter,  in  the  whole,  or  in  part,  either  of  the  prior  charters  to  said 
Potomac  Company,  and  to  these  respondents,  or  any  of  the  corpor¬ 
ate  rights,  privileges  or  immunities,  expressly  granted,  or  necessari¬ 
ly  inferred,  from  the  said  prior  charters,  or  either  of  them,  and  that 
neither  of  the  said  charters,  nor  the  franchises  thereby  created,  can 
be  abolished,  taken  away,  or  in  any  manner  altered  or  diminished 
by  implication,  even  if  the  Legislature  of  Maryland  were  competent 
which  it  was  not,  when  the  charter  of  the  said  Rail  Road  Company 
was  granted,  to  pass  any  law,  or  grant  any  charter,  or  any  right, 
title,  privilege  or  authority  to  be  exercised  under  such  law,  or  char¬ 
ter,  abolishing,  taking  away,  or  materially  diminishing  the  said 
prior  charters,  or  either  of  them,  or  any  of  the  rights,  privileges,  or 
immunities,  by  them,  or  either  of  them,  communicated  to  and  vested 
in  these  respondents.  That  the  charter  granted  to  those  respon¬ 
dents,  as  well  as  that  to  the  late  Potomac  Company,  being  in  the 
nature,  not  only  of  a  contract  between  the  sovereign  parties  to  it,  on 
the  one  hand,  and  the  members  of  the  body  corporate  thereby  created, 
on  the  other,  but  of  a  solemn  and  binding  compact  between  those  so¬ 
vereign  parties  themselves,  was,  arid  is  altogether  irrepealable  and 
indefeasible,  in  the  whole  or  in  any  part,  by  either  of  these  parties, 
without  the  concurrence  of  all ;  or  by  all  without  the  assent  of  the 
corporation  in  which  the  rights,  privileges  and  immunities,  granted 


128 


by  such  charter,  are  vested  and  reside  :  That  the  said  charter  of  the 
complainants,  and  the  authority  exercised,  or  pretended  to  be  exer¬ 
cised  under  it,  in  so  far  as  the  same  purport,  or  are,  or  may  be  con¬ 
strued  and  executed,  in  derogation  of  the  corporate  rights,  privile¬ 
ges  or  immunities,  granted  and  vested  by  the  said  prior  charters,  or 
either  of  them,  are  repugnant  to  the  Constitution  of  the  United  States, 
and  utterly  inoperative  and  void  :  and  lastly,  that,  whatever  the  ab¬ 
stract  right  of  prior  choice  and  election,  claimed  by  these  respondents 
in  other  passable  routes  or  sites  for  their  canal,  and  the  incidental 
operations  authorized  by  their  charter,  the  ground  designated  for  the 
route  and  site  now  in  controversy,  has  been  effectually  elected  and 
appropriated  by  these  respondents,  to  the  exclusion  of  the  complain¬ 
ants  :  Of  all  which  matters,  these  respondents  crave  all  the  benefit 
and  advantage  in  this  answer,  that  they  might,  or  could  have  had, 
in  any  form  of  equity-pleading  whatever. 

(34.)  Of  all  the  documents  of  title,  under  which  the  complainants 
pretend  a  claim  to  the  route  and  site,  in  controversy,  for  their  rail 
road,  and  to  the  lands  in  controversy,  as  referred  to,  and  it  is  presu¬ 
med,  filed  with  their  said  bills,  these  respondents  or  their  counsel  have 
only  examined  such,  as  were  filed  for  enrolment  in  the  clerk’s  office 
of  Washington  county,  Maryland,  as  late  as  the  10th  of  June  last, 
and  in  the  clerk’s  office  of  Frederick,  as  late  as  the  11th  of  the  same 
month,  and  the  agreements  with  Henry  and  Frederick  Dellinger, 
filed  in  this  court  with  the  complainants’  bills,  against  those  persons, 
in  the  same  month ;  the  documents,  so  examined,  comprehend,  as'these 
respondents  are  credibly  and  certainly  informed,  and  verily  believe, 
the  whole  of  the  said  pass  at  and  above  the  Point  of  Rocks,  and  some 
other  of  the  like  narrow  and  difficult  passes,  on  the  route  in  contro¬ 
versy,  and  the  identical  route  and  site  elected,  designated  and  sur¬ 
veyed  for  the  canal  as  aforesaid  :  and  as  to  all  the  other  documents 
of  titles  set  up  and  pretended  by  the  complainants  in  their  said  bills, 
and  therein  referred  to  as  exhibits,  such  as  deeds,  agreements,  loca¬ 
tions  and  specifications  of  locations,  warrants  for  condemnation, 
&c.,  these  respondents  are  not  more  particularly  informed  of  their 
nature  or  authenticity,  than  what  they  collect  from  the  allegations 
of  the  complainants  in  their  said  bills,  and  from  careful  inquiries  in 
the  country  into  the  nature  and  extent  of  the  ground  covered  by  the 
claims  of  the  complainants,  in  virtue  of  those  documents,  without  any 
actual  inspection  of  the  documents  themselves ;  and,  therefore,  for 
greater  certainty,  they  refer  to  the  said  documents  and  exhibits  them¬ 
selves,  and  the  authentication  of  the  same  ;  all  of  which  or  office  co¬ 
pies  of  such  of  the  same  as  have  been  duly  recorded,  these  respon¬ 
dents  presume,  are  or  ought  to  be  filed  as  the  exhibits  referred  to  by 
the  complainants  in  their  said  bills.  The  ground  which  these  docu¬ 
ments  import  an  intent  to  bargain  or  sell,  or  appropriate,  or  in  any 
manner  to  affect  by  location  or  condemnation,  and.  which  the  com¬ 
plainants  now  claim  in  virtue  thereof,  for  the  route  and  site  of  the 
said  rail  road, throughout  the  whole  extent  of  that  ground  upon  or  to¬ 
wards  the  lineof  the  river  Potomac,  includestheidenticalrouteand  site 


129 


selected,  designated  and  surveyed  for  the  said  canal  as  aforesaid,  and 
all  the  slight  variations  of  the  same  in  the  several  reconnoissances, 
surveys  and  locations  made  of  the  same  as  aforesaid,  and  every  other 
practicable  route  and  site  for  the  canal  and  its  appendages  on  the 
hither  side  of  the  river,  from  the  Point  of  Rocks  to  Cumberland  ;  or 
if  there  be  any  gap  in  those  pretended  appropriations  of  such  ground  for 
the  rail  road,  where  the  ground  designated  for  the  route  of  the  canal 
is  not  covered  by  that  claimed  under  those  documents,  it  would  be 
rendered  utterly  useless  and  impracticable  to  these  respondents,  if 
the  actual  claims  of  the  complainants  were  allowed  :  but  whatever 
may  be  the  local  extent  of  the  ground,  so  claimed  by  the  complain¬ 
ants  in  virtue  of  their  said  pretended  locations  and  appropriations  of 
the  same,  the  complainants  in  their  said  bills  are  understood  to  claim, 
as  the  fact  is  otherwise  certain,  that  it  comprehends  the  whole  of  the 
said  pass  at  and  above  the  Point  of  Rocks,  and  all  the  most  difficult 
of  the  other  narrow  passes,  above  described  as  on  the  route  in  con¬ 
troversy;  and  without  the  possession  of  which,  these  respondents 
would  be  compelled  to  abandon  the  whole  of  the  designated  route  for 
their  canal,  without  having  left  to  them  any  practicable  route  for 
the  same  on  the  hither  side  of  the  river.  The  ground,  so  claimed  by 
the  complainants  in  virtue  of  the  several  titles  and  documents  refer¬ 
red  to  in  their  said  bills,  extends  to  the  river  Potomac  itself,  compre¬ 
hending  whatever  of  its  margin  and  water  may  appertain  to  the  lands 
or  rights  of  the  individual  proprietors;  and  in  conducting  the  said 
rail  road  through  several  of  the  narrow  and  difficult  passes  above- 
mentioned,  the  complainants  would  have  to  construct  walls  in  the 
bed  of  the  river,  in  order  to  get  the  proper  breadth  for  .their  road, 
in  like  manner  as  these  respondents  would  have  to  do  for  their  canal 
at  the  same  places ;  and  these  respondents  have  no  doubt  it  is  in  the 
plan  of  the  said  rail  road,  as  devised  and  specified  by  the  engineers 
of  the  complainants,  to  construct  such  river  walls. 

(34.)  These  respondents  do  not  know,  admit,  or  believe,  that  the 
Complainants  had  caused  any  comparative  or  experimental  examin¬ 
ation  of  what,  in  their  said  bills,  they  have  described  as  the  south¬ 
ern  route  for  their  said  Rail  Road,  that  is,  of  the  route  in  contro¬ 
versy  from  the  Point  of  Rocks  to  Cumberland,  or  any  part  of  it,  to 
be  made;  or  that  there  was  any  recommendation  of  that  route, 
lounded  on  any  preliminary  examination  of  the  same  by  their  engi-  , 
neers,  when  they  determined  upon  the  attempt,  in  direct  and  con¬ 
certed  hostility  to  and  derogation  of  the  rights  of  these  Respondents, 
to  adopt  and  appropriate  that  route  to  themselves,  and  commenced 
their  operations  in  May,  1828,  for  the  location  of  their  road  on  that 
route,  and  the  appropriation  of  the  ground  constituting  the  route 
and  site  of  the  canal  as  aforesaid  :  but  these  Respondents  are  credi¬ 
bly  and  certainly  informed  and  do  verily  believe,  that  without  any 
previous  examination  of  that  route  by  their  direction  or  authority, 
they  suddenly  despatched  their  agents,  attornies  and  engineers,  some 
time  about,  or  after  the  middle  of  May,  1828,  (as  to  the  precise  time 
these  Respondents  for  greater  certainty  refer  to  the  documents  of 
15 


130 


title,  whether  deeds,  agreements,  or  warrants  exhibited  with  the 
said  hills,  of  the  Complainants)  to  seize  upon  the  said  route  by  the 
means  set  forth  in  their  said  hills ;  and  that,  without  any  previous 
survey  or  examination  whatever  of  the  route,  on  their  part  or  behalf, 
they  made  their  pitch,  at  once,  and  in  the  first  instance,  upon  the  nar¬ 
row  and  difficult  passes  above  described  on  that  route,  “and  wher¬ 
ever  the  character  of  the  ground  was  such  (according  to  the  descrip¬ 
tion  of  it  by  the  Complainants  in  their  said  bills)  as  to  leave  but  lit¬ 
tle  choice  in  the  location  of  the  said  road,  and  of  course,  no  choice  in 
that  of  the  canal  ;  that  these  measures  were  pursued  with  the  most 
extraordinary  and  precipitant  haste ;  their  agents  riding  about  and 
ranging  the  country  with  ceaseless  activity,  day  and  night,  hunting 
up  the  proprietors  of  the  ground  on  the  route,  and  soliciting  from 
them  cessions  for  the  Rail  Road ;  and  with  such  anxious  vigilance 
and  such  activity  and  celerity  of  movement  were  all  their  operations, 
for  the  location  of  the  site  of  the  Rail  Road,  and  for  taking  up  and 
forestalling  the  proprietary  rights  in  the  ground,  conducted  by  the 
agents  of  the  Complainants,  and  the  officers  of  the  United  States 
serving  them  as  engineers,  that  the  party  more  resembled  a  partisan 
corps,  meditating  or  guarding  against  surprises,  on  the  flank  of  an 
enemy,  than  persons  engaged  in  the  ordinary  busines  either  of  con¬ 
tract  or  of  civil  engineering.  The  Engineers  who  were  employed 
by  the  Complainants  on  that  service,  were  enabled  to  perform  such 
of  the  said  operations  as  fell  to  their  share  (and  they  were  not  con¬ 
fined  as  these  Respondents  are  credibly  informed  and  believe,  to  ope¬ 
rations  within  the  ordinary  sphere  of  engineers  either  civil  or  milita¬ 
ry,  but  extended  to  solicitations  and  negotiations  with  the  individual 
proprietors  for  cessions  of  their  lands,)  with  so  much  the  more  ease 
and  despatch,  as  most  of  them  had  before  been  attached  to  the  said 
Board  of  Internal  Improvement,  and  actually  engaged,  under  the  di¬ 
rection  of  that  Board,  in  the  reconnoissances  and  surveys  of  the  route 
of  the  Chesapeake  and  Ohio  Canal,  and  in  making  up  the  memoirs, 
topographical  descriptions,  drawings,  maps  and  profiles  of  the  route 
and  plan  of  the  canal  as  above  stated ;  of  which,  or  of  the  geograph¬ 
ical  and  topographical  details  and  information  derived  from  which, 
they  made  free  and  .frequent  use  (as  these  Respondents  are  further 
credibly  informed  and  verily  believe,)  in  their  locations  of  the  said 
Rail  Road  upon  the  said  route  :  and  these  Respondents  have  the 
strongest  reason  to  think  and  believe,  and  do  verily  think  and  be¬ 
lieve,  that  the  Complainants  were  urged  to  the  instant  commence¬ 
ment  of  these  operations,  and  to  the  extraordinary  haste  and  precipi¬ 
tancy  with  which  they  pursued  them,  entirely  by  the  near  prospect 
which  they  perceived  of  an  organized  board  of  President  and  Direc¬ 
tors  for  the  efficient  management  of  the  affairs  of  the  said  Canal 
Company,  and  by  a  design  to  forestall  and  defeat  the  expected  opera¬ 
tions  of  that  Board  to  secure,  by  purchase  or  condemnation,  the 
ground  already  designated  and  selected  for  the  route  and  site  of  the 
canal. 


131 


(35.)  In  further  confirmation  of  what  these  Respondents  have  al¬ 
ready  averred,  the  full  and  detailed  knowledge  and  notice  of  the  long 
standing,  authentic  and  notorious  election  and  appropriation  of  the 
route  and  site  in  controversy  for  the  canal,  and  of  all  the  steps  that 
had  been  taken  to  mark  it  out  and  set  it  apart  for  that  purpose,  and 
how  completely  it  had  been  incorporated  and  identified  with  the  whole 
scheme  and  plan  of  the  canal ;  with  which  knowledge  and  notice,  the 
Complainants  and  their  agents  and  engineers  commenced  and  car¬ 
ried  on  all  their  said  operations  to  counteract  and  defeat  these  Res¬ 
pondents  in  the  fulfilment  of  the  great  public  and  beneficial  ends  and 
object  of  their  institution  ;  and  in  order  more  clearly  to  illustrate  the 
inequitable  use  and  application  made  of  such  knowledge,  which  in¬ 
stead  of  serving  as  a  protection  to  rights  the  existence  of  which  it 
t  communicated,  was  laid  hold  of  and  used  to  overreach  and  defeat 
those  rights :  and  how  unscrupulously  in  other  respects,  the  very 
instruments  and  means  dedicated  to  the  advancement  and  execution- 
of  the  scheme  of  the  canal,  have  been  converted  into  the  instruments 
and  means  of  the  most  deadly  attempts  against  its  vital  interests, 
and  the  interests  of  the  identical  parties  who  had  provided  those  same 
instruments  and  means,  and  lent  the  aid  of  them  to  the  Complainants 
for  a  very  different  purpose  ;  these  Respondents  say,  that  of  the  nine 
delegates  from  Baltimore  to  the  said  canal  convention,  in  December, 
eighteen  hundred  and  twenty  six,  eight  of  them  were  prominent  and 
,  active  members  of  the  said  meeting  at  the  city  of  Baltimore,  when 

the  project  of  the  said  Rail  Road  was  set  on  foot,  and  of  the  commit¬ 
tees  appointed  by  that  meetin ;  gand  six  of  thoseeight,  actually  attend¬ 
ed  the  said  convention,  and  took  part  in  its  deliberations  and  proceed¬ 
ings;  as  will  more  particularly  and  at  large  appear  by  a  reference  to 
the  above  mentioned  proceedings  of  the  said  Baltimore  meeting  and 
canal  convention  ;  one  of  them  was  appointed  the  President  of  the 
said  Rail  Road  Company,  at  their  first  election,  and  has  ever  since 
continued  so ;  and  was  also  appointed  by  the  Executive  of  Maryland, 
one  of  the  commissioners  to  open  the  subscription  books  for  the  Cap¬ 
ital  Stock  of  the  said  canal  company  ;  and  others  of  the  said  dele- 
>  gates  were,  it  is  believed,  appointed  directors  of  the  said  Rail  Road 
Company  ;  that  the  Board  of  Engineers,  officiating  for  the  said  Rail 
Road  Company,  was  always  and  yet  is  in  part  composed,  and  their 
corps  of  field  engineers  was  always  and  yet  is  entirely  composed  of 
officers  belonging  to  the  several  corps  of  engineers  and  of  the  army 
of  the  United  States,  and  of  the  civil  engineers  in  the  service  of  the 
United  Slates ;  all  of  whom  were  lent  by  the  government  of  the  Unit¬ 
ed  States  to  the  Complainants,  to  perform  the  scientific  operations 
necessary  to  execute  their  then  supposed  plan  of  a  Rail  Road;  and, 
it  is  understood  the  Complainants  enjoy  the  services  of  these  engi¬ 
neers  at  public  expense,  that  any  idea  of  interference  between  the 
Rail  Road  and  the  canal,  was  then,  and  ever  after,  till  the  above 
mentioned  intelligence  reached  and  surprised  the  Secretary  of  the 
Treasury  in  June  last,  the  remotest  imaginable  from  the  mind  of  the 
Government ;  and  was  necessarily  known  to  the  Complainants  to  be 


182 


so  :  that  of  the  various  descriptions  of  engineers  so  borrowed  by  the 
Complainants  from  the  public  service,  six  had  been  before  employed 
and  actively  engaged  under  the  abovementioned  Board  of  Internal 
Improvement,  in  the  identical  reconnoissances,  surveys,  &c.  &c.  of 
the  route  of  the  Chesapeake  and  Ohio  Canal,  in  the  years  1824, 
1825,  and  1826,  communicated  by  the  President  to  Congress,  and 
published  as  abovementioned  :  all  which,  will  more  particularly, 
and  at  large,  appear,  by  reference  to  the  already  cited  reports  of  the 
said  Board  of  Internal  improvement,  and  to  the  annexed  document, 
certified  from  the  War  Department  of  the  United  States,  containing 
the  roll  of  the  engineers,  detached  from  the  public  service  for  the 
service  of  the  Complainants,  with  the  orders  from  the  chief  engineer 
of  the  United  States,  to  the  three  principals  among  them  :  and  also 
the  roll  of  the  various  engineers,  in  the  service  of  the  United  States, 
•constituting  the  said  Board  of  Internal  Improvement  and  its  assis¬ 
tants,  and  the  corps  of  engineers  of  various  classes,  actually  em¬ 
ployed  under  the  direction  of  that  Board,  in  the  various  reconnois¬ 
sances,  surveys,  &c.  &c.  of  the  route  of  the  Chesapeake  and  Ohio 
Canal. 

(56.)  Now,  these  Respondents,  as  further  advised  by  their  coun¬ 
sel,  and  further  answering,  say,  that  by  the  pretensions  set  up  by 
the  complainants,  in  their  said  bills,  to  oust  and  deprive  these  Res¬ 
pondents  of  the  route  and  site  for  their  canal,  here  in  controversy, 
and  to  intrude  the  said  Rail-Road  upon  the  same,  by  the  retrospec¬ 
tive  operation  and  effect  of  the  Rail-Road  charter,  or  of  any  other 
statute  of  Maryland,  or  of  any  other  State,  and  in  virtue  of  the  pre¬ 
tended  authority  which  the  complainants  assert  and  exercise  under 
the  said  State,  and  their  charter  from  the  same,  as  set  up  and  assert¬ 
ed  in  their  said  bills,  there  is  now  here  drawn  in  question  the  con¬ 
struction  of  the  Constitution  of  the  United  States ;  and  especially 
of  that  clause  of  the  same,  whereby  it  is  ordained  and  established, 
that  no  State  shall  pass  any  ex  post  facto  law  or  laws  impairing  the 
obligation  of  contracts;  and  of  the  several  statutes  of  the  United 
States,  to  wit :  The  act  of  Congress,  passed  on  Jhe  30th  of  April, 
1824,  appropriating  thirty  thousand  dollars  for  the  purpose  of  pro¬ 
curing  the  necessary  surveys,  maps,  plans,  and  estimates,  upon  the 
subject  of  roads  and  canals,  &c — the  act  of  Congress,  passed  on 
the  3d  of  March,  1825,  confirming  an  act  of  the  Legislature  of 
Virginia,  incorporating  the  Chesapeake  and  Ohio  Canal  Company, 
and  an  act  of  the  State  of  Maryland,  confirming  the  said  act  of  Vir¬ 
ginia,  &c. — the  act  of  Congress,  passed  on  the  23d  of  May,  1828, 
to  amend  and  explain  the  two  last-mentioned  acts  of  Maryland  and 
Virginia,  Ac. — and  the  two  acts  of  Congress,  passed  on  the  24th  of 
May,  1828,  the  one  authorizing  a  subscription  to  the  stock  of  the 
Chesapeake  and  Ohio  Canal  Company,  the  other  enlarging  the  pow¬ 
ers  of  the  several  Corporations  of  the  District  of  Columbia,  and 
for  other  purposes ;  under  which  said  clause  of  the  Constitution  of 
the  United  States,  or  under  such  other  clause  and  provisions  of  the 
same,  as  apply  to  and  operate  on  the  case,  and  under  which  said 


133 


statutes  of  the  United  States,  or  under  such  of  them,  and  such  parts 
of  them,  as  apply  to  and  operate  on  the  case,  these  Respondents,  in 
virtue  of  their  aforesaid  charter,  and  of  the  several  statutes  and 
acts  of  Virginia,  Maryland,  and  the  United  States,  constituting 
such  charter,  or  altering  or  amending  the  same,  or  anywise  relating 
to  the  same,  and  in  virtue  of  the  rights  and  interests  thereby,  and 
by  the  authority  of  the  same,  vested  in  these  Respondents,  do  now 
here  before  this  court,  set  up  and  claim  their  prior  and  preferable 
title,  right  and  privilege,  to  construct  their  said  canal  and  its  inci¬ 
dental  works  and  appendages,  on  the  precise  route  and  site  designa¬ 
ted  for  them  as  aforesaid,  and  now  in  controversy ;  and  to  appropri¬ 
ate,  by  the  prescribed  modes  of  purchase  or  condemnation,  the 
lands  and  tenements  in  controversy,  on  and  near  that  route  and  site, 
and  through  which  the  said  canal  is  intended  to  be  conducted,  and 
the  necessary  materials  found  on  such  lands,  for  the  construction  of 
the  said  canal  and  its  incidental  works  and  appendages;  and  these  Re¬ 
spondents  do  now  here  set  up  and  claim  before  this  court,  under  the 
Constitution  and  statutes  of  the  United  States  aforesaid,  and  in  vir¬ 
tue  of  the  rights,  interests,  and  authority,  by  force  of  the  said  sta¬ 
tutes,  and  of  the  other  laws  aforesaid,  vested  in  these  Respondents, 
an  exemption  of  such  their  prior  and  preferable  title,  right,  and 
privilege  aforesaid,  from  the  operation  and  effect  of  the  charter 
granted  to  the  complainants  as  aforesaid,  and  of  the  pretended  au¬ 
thority  set  up,  asserted  and  exercised  under  the  same  as  aforesaid ; 
and  from  all  diminution  and  interference,  under  pretence  of  such 
charter  or  authority.  And  there  is,  in  like  manner,  now  here  drawn 
in  question,  the  validity  of  the  statute  of  Maryland,  incorporating 
the  Baltimore  and  Ohio  Rail-Road  Company,  and  of  the  pretended 
authority  so  set  up,  asserted  and  exercised  by  the  complainants, 
under  that  statute  as  aforesaid,  in  so  far  as  that  statute,  or  that  au¬ 
thority  has  been,  is,  or  may  be  held  or  construed,  setup,  asserted,  or 
exercised,  to  operate  any  revocation,  diminution,  alteration  or  inter¬ 
ference  of,  or  with  the  prior  and  preferable  title,  right,  and  privilege, 
so  set  up  and  claimed  by  these  Respondents  as  aforesaid,  or,  in  any 
manner,  to  set  up  and  assert  any  adversary  title,  right,  or  privilege, 
or  the  pretence  of  such  in  the  complainants;  the  said  statute,  and 
the  said  authority,  so  set  up,  asserted  and  exercised  under  the  same, 
by  the  complainants  as  aforesaid,  being  so  far,  and  to  every  such  in¬ 
tent  and  purpose  as  aforesaid,  repugnant  to  the  Constitution  of  the 
United  States.  Of  all  which  matters,  these  Respondents  crave  all 
the  benefit  and  advantage  in  this  answer,  that  they  might,  or  could 
have  had  from  averment,  or  from  any  form  or  mode  of  equity  plead¬ 
ing  whatsoever. 

(37.)  These  Respondents  deny  all  fraud  and  combination  where¬ 
with,  &c.  without  this,  that  they  have  herein  left  unanswered,  any 
matter  or  thing  in  the  said  bills,  or  either  of  them  contained,  which 
they  ought  to  have  answered,  &c.  Wherefore,  they  pray  to  be  hence 
dismissed  with  their  costs  in  this  behalf,  most  wrongfully  sustain¬ 
ed,  &c. 


134 


In  verification  of  the  foregoing  answer,  and  of  all  and  singular 
the  averments,  matters  and  things  therein  contained,  and  on 
behalf  of  the  Respondents  averred,  and  of  the  annexed  sche¬ 
dule,  as  part  and  parcel  of  the  foregoing  answer.  These  Res- 
[seal.]  pondents  have  caused  the  proper  hand  of  their  President  to 
be  hereunto  subscribed,  and  their  corporate  seal  to  be  hereto 
affixed,  this  eighth  day  of  May,  in  the  year  of  our  Lord,  one 
thousand  eight  hundred  and  twenty-nine. 

C.F.  MERCER, 

President  of  the  Chesapeake  and  Ohio  Canal  Company. 

W.  JONES, 

For  Defendants  and  Respondents . 


SCHEDULE  REFERRED  TO  IN  THE  FOREGOING 
ANSWER. 

1.  A  pamphlet,  printed  at  Washington  in  1828,  entitled  ^Chesa¬ 
peake  and  Ohio  Canal  Company,”  containing  the  several  laws  and  res¬ 
olutions  of  Virginia,  Maryland,  Pennsylvania  and  the  United  States, 
relative  to  the  Potomac  Company,  and  the  Chesapeake  and  Ohio  Ca¬ 
nal  Company,  the  proceedings  of  the  companies,  &c. 

2.  Proceedings  of  the  Board  of  Public  Works  of  Virginia,  1819 — 
20,  with  the  documents  and  papers  accompanying  the  same,  as  prin¬ 
ted  by  authority  of  the  General  Assembly  of  Virginia. 

3.  Message  of  the  Governor  of  Maryland  to  the  General  Assembly, 
communicating  the  report  of  the  Commissioners  appointed  by  the 
conjoint  authority  of  Virginia  and  Maryland,  to  survey  the  river  Po¬ 
tomac,  &c.  with  the  documents  and  papers  accompanying  the  same, 
as  printed  at  Annapolis  by  the  authority  of  the  General  Assembly, 
or  House  of  Delegates,  in  1822. 

4.  Letters  from  the  Governor  and  Council  of  Maryland,  to  the 
President  of  the  Senate  of  the  United  States,  communicating  the 
same  report,  &c.  as  printed  by  order  of  the  Senate,  January  27,  1823. 

5.  Report  of  the  committee  of  the  House  of  Delegates  of  Mary¬ 
land,  December  Session,  1821,  on  the  executive  communication  rela¬ 
ting  to  the  appointment  of  commissioners  with  respect  to  the  Poto¬ 
mac  river,  &c.  &c.,  with  the  documents  and  papers  accompanying 
the  same,  as  printed  at  Annapolis,  by  authority  of  the  House  of  Del¬ 
egates. 

6.  A  bill  reported  in  the  House  of  Delegates  of  Maryland,  January 
28,  1823,  entitled  “An  Act  to  establish  the  Potomac  Canal  Compa¬ 
ny  as  printed  by  order  of  that  House. 

7.  A  law  of  Virginia,  passed  February  22,  1823,  entitled  “An  Act 
incorporating  the  Potomac  Canal  Company. ” 

8.  Report  of  the  Committee  of  the  House  of  Representatives  of  the 
United  States  on  Roads  and  Canals,  made  January  2,  1822,  accom- 


135 


paniedby  a  report  of  the  Secretary  of  the  Treasury,  pursuant  to  a  re¬ 
solution  of  the  Senate  of  March  2,  1807,  with  the  other  documents  and 
papers  accompanying  that  report,  as  printed  by  order  of  the  House. 
Vide  printed  reports  of  1st  sess.  17th  Cong.  vol.  1.  [Report  No.  8.] 

9.  Resolutions  of  said  House  of  Representatives,  moved  by  Mr. 
Stewart,  March  5,  1822,  directing  the  committee  on  Roads  and  Canals 
to  inquire  into  the  expediency  of  appointing  commissioners  to  exam¬ 
ine  and  report  the  practicability,  &c.  of  connecting  by  a  canal  the 
Potomac  and  the  Youghiogany  rivers,  uniting  the  eastern  with  the 
western  waters.  Yide  House  Journal,  1st  sess.  17  Cong,  page  317,  as 
printed  by  order  of  the  House. 

10.  Report  of  the  committee  on  roads  and  canals  of  the  House  of  Rep¬ 
resentatives  of  the  United  States,  April  26,  1822,  with  the  documents 
and  papers  accompanying  the  same,  as  printed  by  order  of  the  House. 
Yide  printed  reports,  &c.  1st  sess.  17  Cong.  [Report  No.  98.] 

11.  Report  of  the  committee  on  the  District  of  Columbia,  House 
of  Representatives,  United  States,  on  sundry  memorials  from  the  in¬ 
habitants  of  Pennsylvania,  Maryland  and  Virginia,  praying  the  aid 
of  the  General  Government  towards  the  improvement  of  the  naviga¬ 
tion  of  the  river  Potomac,  May  3,  1 822,  with  the  documents  and  papers 
accompanying  the  same,  as  printed  by  order  of  the  House.  Yide  prin¬ 
ted  reports,  1st  ses.  17  Cong.  [Report  No.  111.]  For  this  report 
(without  the  accompanying  documents)  vid.  appendix  to  the  report  re¬ 
ferred  to  in  No.  17  of  this  schedule. 

12.  Proceedings  of  the  Chesapeake  and  Ohio  Canal  Convention, 
at  its  first  and  second  sessions,  on  the  6th  of  November,  1823,  and  6th 
of  December,  1826,  with  the  documents  aud  papers  accompanying 
the  same,  printed  at  Washington  City,  1827,  by  order  of  the  Con¬ 
vention. 

13.  Message  of  the  President  of  the  United  States  to  Congress, 
14th  Febuary,  1825,  transmitting  the  report  of  the  Board  of  Inter-, 
nal  Improvement,  Ac.  with  the  documents  and  papers  accompanying 
that  message,  as  printed  by  order  of  the  House  of  Representatives, 
among  the  public  documents  of  that  House,  at  the  2d  sess.  of  the  18th 
Congress.  [Document  No.  83.]  And  also  as  printed  by  order  of 
the  Senate  of  the  United  States,  among  the  Senate’s  public  documents 
of  the  session.  [Document  No.  32.] 

14.  Map  of  the  country  between  Washington  City  and  Pittsburg, 
shewing  the  proposed  routes  of  the  Chesapeake  and  Ohio  Canal, 
compiled  by  E.  H.  Courtney,  Lieutenant  of  corps  of  Engineers,  ac¬ 
companying  the  abovementioned  report  of  the  Board  of  Internal  Im¬ 
provement,  and  tested  as  No,  16,  but  not  printed  with  the  other  doc¬ 
uments  accompanying  the  President’s  said  message. 

15.  Memorial  of  the  Central  Committee  of  the  Chesapeake  and 
Ohio  Canal  Convention  and  of  the  Commissioners  appointed  by  the 
States  of  Virginia  and  Maryland,  and  the  United  States,  Ac.  to  Con¬ 
gress,  as  printed  by  order  of  the  House  of  Representatives  of  the 
United  States,  April  3,  1826,  among  the  House  documents,  1st  sess. 

1 9th  Cong.  [Document  No.  151.] 


136 


16.  Report  of  the  committee  on  Roads  and  Canals  of  the  House 
of  Representatives  of  the  United  States,  May  16,  1826,  on  the  re¬ 
solution  of  the  House,  instructing  that  committee  to  inquire  into  the 
expediency  of  surveying  a  route  for  the  extension  of  the  Chesapeake 
and  Ohio  Canal,  from  Pittsburg  to  Lake  Erie,  &c.  &c*  with  the  doc¬ 
uments  and  papers  accompanying  the  same,  as  printed  among  the 
reports  of  the  House,  1st  sess.  19th  Cong.  [Report  No  216.] 

17.  Report  of  the  committee  on  Roads  and  Canals  of  the*House 
of  Representatives  of  the  United  States,  May  22,  1826,  on  a  joint 
memorial  of  the  Central  Committee,  and  the  Commissioners  appoint¬ 
ed  by  Virginia,  and  Maryland,  and  the  United  States,  &c.  &c.  as 
printed  among  the  documents  of  the  House,  of  the  first  session  nine¬ 
teenth  Congress.  [Report  No.  228.] 

18.  Letter  from  the  Secretary  of  War,  dated  April  11,  1826,  to 
the  Speaker  of  the  House  of  Representatives  of  the  United  States,  in 
compliance  with  a  resolution  of  the  House,  transmitting  a  report  of 
the  Engineer  employed  in  exploring  the  country  between  Bedford  and 
Cumberland :  with  the  document  and  papers  accompanying  the  said 
letter,  &c.  &c.  as  printed  by  order  of  the  House  among  its  public  docu¬ 
ments.  1st  sess.  19th  Cong.  [Doc.  No.  158.] 

19.  Letter  from  the  Secretary  of  War  to  the  Speaker  of  the  House 
of  Representatives  of  United  States,  April  29th  1826,  in  compliance 
with  a  resolution  of  the  House,  transmitting  a  report  of  the  engineers 
employed  in  exploring  the  country,  &c.  between  the  Deep  Creek 
and  Castleman’s  summits,  Ac.  with  the  documents  a,nd  papers  accom¬ 
panying  that  letter,  as  printed  by  order  of  the  House  among  its  pub¬ 
lic  documents,  1st  sess.  19th  Cong.  [Doc.  No.  169  ] 

20.  Message  from  the  President  of  the  United  States  to  Congress, 
Dec.  7th,  1826,  transmitting  the  report  of  the  Board  of  internal 
Improvement,  &c.  concerning  the  proposed  Chesapeake  and  Ohio  Ca¬ 
nal,  with  the  documents  and  papers  accompanying  that  message,  as 
printed  by  order  of  the  House  of  Representatives  United  States, 
among  the  executive  documents,  2d  sess.  19th  Cong,  [Doc.  No.  10.] 
and  also  printed  by  order  of  the  Senate  of  the  United  States,  among 
the  Senate’s  public  documents,  same  session.  [Doc.  No. — .] 

21.  The  following  of  the  documents  accompanying  and  mentioned 
in  the  last  abovementioned  report,  but  not  printed  with  the  other  pa¬ 
pers  and  documents  transmitted  with  the  President’s  last  above  men¬ 
tioned  message  :  to  wit,  No.  1.  of  the  memoirs  mentioned  in  General 
Bernard’s  letter  to  Gen.  Macomb,  p.  9,  being  Lieut  Col.  Abbert’s 
report,  &c. 

The  maps  and  profiles  of  the  first  seven  subdivisions  of  the  Chesa¬ 
peake  and  Ohio  Canal,  referred  to  and  described  in  Gen.  Bernard’s 
said  letter,  p.  9,  and  in  the  report  of  the  Board  describing  the  east¬ 
ern  section  of  the  Canal,  and  its  first  seven  subdivisions,  p.  41  to  48, 
and  numbered  from  sheet  A  1,  to  A  14,  inclusive.  Also  the  map  re¬ 
ferred  to  and  described  in  the  same  letter  and  report,  as  the  Board 
of  Internal  Improvements,  map  No.  1,  sheet  A,  No.  15. 


137 


22.  Report  of  the  Committee  of  the  House  of  Representatives  of 
the  United  States  on  Roads  and  Canals,  January  30,  1827,  to  whom 
were  referred  the  memorials  and  proceedings  of  the  Chesapeake  and 
Ohio  Canal  Convention,  &c.  with  the  documents  and  papers  accom¬ 
panying  that  report,  as  printed  by'order  of  the  House  among  its  re¬ 
ports  at  the  2d  sess.  19th  Cong.  [Report  No.  90.] 

*23.  Letter  from  the  Secretary  of  War  to  the  Speaker  of  the  House 
of  Representatives,  U.  S.  January  11,  1828,  pursuant  to  a  resolu¬ 
tion  of  the  House,  transmitting  Doctor  William  Howard’s  report  and 
plans  of  the  survey  of  a  route  for  a  Canal  from  Baltimore  to  the  Po¬ 
tomac,  &c.  with  the  documents  and  papers  accompanying  that  letter, 
as  published  by  order  of  1  he  House,  January  30,  1828,  among  its  pub¬ 
lic  documents  of  the  1st  scss.  20th  Cong.  [Doc.  58.] 

24.  Memorial  of  the  Central  Committee  of  the  Chesapeake  and 
Ohio  Canal  Convention  to  Congress,  with  the  documents  and  papers 
accompanying  the  same,  read  and  referred  (January  28,  1828)  to  the 
committee  of  the  whole  House  of  Representatives,  U.8.  &c.  as  printed 
by  order  of  the  House  among  its  documents,  1st  sess.  20th  Cons. 
[Doc.  No.  101.] 

25.  Letter  from  the  Secretary  of  War  to  the  Speaker  of  the  House 
of  Representatives,  U.  S.  (March  10,  1828)  in  obedience  to  a  reso¬ 
lution  of  the  House,  transmitting  the  report  of  the  civil  engineers, 
James  Geddes  and  Nathan  S.  Roberts,  of  their  survey  and  estimates 
of  the  eastern  section  of  the  Chesapeake  and  Ohio  Canal,  with  the 
documents  and  papers  accompanying  that  letter,  as  printed  by  order 
of  the  House  among  its  public  documents,  1st  sess.  20th  Con.  [Doc. 
No.  192.] 

26.  The  maps  and  profiles  (not  printed  with  the  other  documents 
accompanying  the  last  mentioned  letter,  but  accompanying  the  report 
of  the  said  civil  engineers  and  therein  referred  to)  of  the  first  seven 
subdivisions  of  the  route  of  the  eastern  section  to  which  their  said 
report  applies. 

27.  Letter  from  the  Secretary  of  War  to  the  Speaker  of  the  House 
of  Representatives  of  the  United  States  (April  18,  1828)  pursuant 
to  a  call  from  the  House,  transmitting  a  report,  &c.  by  the  said  civil 
engineers,  James  Geddes  and  Nathan  S.  Roberts,  on  a  line  of  canal 
from  the  '  three  Sisters,”  above  Georgetown  to  Alexandria,  with  the 
document's  and  papers  accompanying  said  letter,  as  printed  by  order 
of  the  House  among  its  public  documents,  1st  sess.  20th  Cong.  [Doc. 
No.  254.] 

28.  Report  of  the  committee  on  Roads  and  Canals  of  the  House 
of  Representatives,  U.  S.  (January  2,  1828)  to  whom  was  referred 
the  memorial  of  the  Central  Committee  of  the  Chesapeake  and  Ohio 
Canal  Convention,  and  of  the  commissioners  appointed  by  Virginia, 
&c.  with  the  documents  and  papers  accompanying  the  same,  as  prin¬ 
ted  by  order  of  the  House  of  Representatives  among  its  reports,  1st 
sess.  20th  Cong.  [Report  No.  47.] 

29.  Supplementary  report  of  the  same  committee  (Febuary  11, 
1828)  with  the  documents  and  papers  accompanying  the  same,  as  prin- 

16 


138 


teil  by  order  of  the  House,  among  its  reports,  1st  sess.  20th  Cong. 
[Report  No.  141.] 

30.  Report  of  the  same  committee  (January  30,  1 828)  on  the  memo¬ 
rials  of  the  Corporations  of  Washington,  Georgetown  and  Alexan¬ 
dria,  &c.  &c.  with  the  documents  and  papers,  as  printed  by  order 
of  the  House,  among  its  reports,  lstsess.  20th  Cong.  [Report  No. 
112.] 

31.  Letter  from  the  Governor  of  Maryland  to  the  President  of  the 
Senate  LT.  S.  (Feburary  1,  1825)  transmitting,  pursuant  to  a  resolution 
of  the  Legislature  of  Maryland,  a  copy  of  tile  law  of  that  State,  con¬ 
firming  the  act  of  Virginia,  incorporating  the  Chesapeake  and  Ohio 
Canal  Company,  &c.  &c.  as  printed  by  order  of  Senate  of  the  United 
States,  among  its  public  documents,  2d  sess.  1 8th  Cong.  [Doc.  No. 
24.] 

32.  Summary  of  the  subscriptions  to  the  Capital  Stock  of  the 
Chesapeake  and  Ohio  Canal  Company,  shewing  its  aggregate  amounts 
on  certain  days. 

33.  The  several  advertisements  of  the  Commissioners  appointed 
by  Virginia,  &c.  advertising  the  opening  of  the  subscription  books  for 
the  Capital  Stock  of  the  Chesapeake  and  Ohio  Canal  Company,  and 
their  calls  and  postponement  of  the  general  meeting  of  the  stock¬ 
holders. 

34.  Attested  copy  of  the  Bill  of  Injunction  in  Washington  County 
Court,  10th  June,  1828,  by  these  respondents  and  the  Potomac  Com¬ 
pany,  against  the  now  complainants. 

35.  Maps  (No.  1,  2,  3)  and  profiles  accompanying  the  same  of  the 
survey,  location,  and  plan,  of  the  Chesapeake  and  Ohio  Canal  from 
the  Point  of  Rocks,  or  a  short  distance  below, to  Williamsport;  pre¬ 
pared  by  the  engineers  of  these  respondents  (since  the  surveys,  maps, 
&c.  of  the  United  States9  engineers)  for  the  purpose  of  putting  that 
part  of  the  route  under  contract  for  execution. 

36.  The  printed  proceedings  of  a  number  of  citizens  of  Baltimore, 
assembled  at  that  city  on  the  12th  and  19th  February,  1827,  to  take 
into  consideration  the  best  means  of  restoring  to  Baltimore,  &c.  prin¬ 
ted  by  the  authority  of  the  meeting  and  its  committee. 

37.  Documents  certified  by  the  Secretary  of  War,  exhibiting  the 
orders  or  instructions  from  the  Chief  Engineer  of  the  United  States, 
to  three  of  the  principal  engineers  detached  from  the  service  of  the 
United  States  for  the  service  of  the  complainants,  and  of  those  em- 
plo>ed  under  the  Board  of  Internal  Improvement,  in  the  reconnois- 
•ances,  surveys,  &c.  of  the  route  of  the  Chesapeake  and  Ohio  Canal. 


139 


THE  BALTIMORE  AND  OHIO  RAIL  ROAD  COMPANY, 

vs. 

THE  CHESAPEAKE  AND  OHIO  CANAL  COMPANY. 


In  Chancery,  September  24th,  1829. 

The  motion  for  the  dissolution  of  the  injunction  heretofore  granted 
in  this  case,  standing  ready  for  hearing,  the  matter  was  opened,  and 
the  argument  commenced  by  the  solicitors  of  the  parties  on  the  21st 
July  last,  and  continued  until  the  6th  of  August  following,  when  per¬ 
mission  was  given  to  add,  by  way  of  notes,  some  remarks  upon  such 
new  matters  as  had  not  been  presented  in  the  opening  on  the  part  of 
the  plaintiffs.  Whereupon  a  kind  of  supplemental  argument  in  writ¬ 
ing,  was  prepared  on  each  side,  which,  with  the  pleadings  and  their 
exhibits,  amounted  on  the  part  of  the  defendants  to  a  very  large 
mass,  were  submitted  on  the  19th  of  August  last ;  since  which  time, 
I  have  read  the  proceedings,  and  maturely  considered  the  whole  case. 

It  appears  that  the  plaintiffs  by  their  act  of  incorporation,  were  au¬ 
thorized,  for  the  purpose  of  making  the  contemplated  road,  to  enter 
upon,  use  and  excavate,  any  land  which  might  be  wanted  for  the  site 
of  their  road,  or  its  necessary  works,  and  to  enable  them  to  acquire 
a  complete  legal  title  to  such  land,  upon  making  compensation  for  it, 
they  were  authorized  to  agree  with  the  owner  for  the’purchase  of  it, 
or  if  he  were  unwilling  or  incompetent  to  sell,  or  out  of  the  county, 
in  which  the  property  wanted  might  be,  they  were  authorised  to  ob¬ 
tain  a  warrant  for  having  it  valued  and  condemned  to  them,  in  the  mode 
prescribed.  Under  these  powers  they  proceeded  to  enter  upon  the 
lands  along  the  route  they  have  described,  as  the  site  of  their  road, 
thus  located,  and  to  procure  a  complete  legal  title  to  those  lands,  they 
agreed  with  the  owners  of  some  parts  for  a  legal  conveyance,  and 
had  sued  out  warrants  for  the  purpose  of  obtaining  a  legal  title  to 
other  parts  thereof  in  that  way.  That  neither  the  Potomac  Compa¬ 
ny,  (a  body  politic  in  existence  at  the  time  the  plaintiffs  filed  their 
bill,  but  who  have  since  been  dissolved,)  nor  the  present  defendants 
had  ever,  in  any  manner,  acquired  any  title  to  the  lands  over  which 
the  plaintiffs  had  located  their  roads,  and  that  these  defendants  had, 
notwithstanding,  attempted,  and  were  about  to  obtain  a  legal 
title  in  the  mode  authorized  by  their  act  of  incorporation,  for  the 
identical  same  lands  so  entered  upon,  agreed  for,  or  about  to  be 
condemned  by  the  plaintiffs :  by  which  means  they  would  be  enabled 
to  interfere  very  injuriously  with  the  rights  of  the  plaintiffs,  and  in¬ 
volve  them  in  great  difficulties.  To  prevent  which,  the  plaintiffs 
prayed  an  injunction,  which  was  accordingly  granted. 

The  equity  arising  out  of  these  facts  may  be  expressed  to  this  ef¬ 
fect  :  where  two  or  more  are  allowed  by  law,  to  purchase  and  acquire 


140 


a  title  to  lands  upon  certain  conditions,  and  according  to  a  prescribed 
mode  of  proceeding,  he  who  does  the  first  requisite  act  for  that  pur¬ 
pose,  shall  not  be  hindered  in  his  further  progress,  because  the  law 
has  thus  held  out  a  pledge,  that  to  no  one  else  shall  be  permitted  after 
that,  so  to  interpose  any  obstacles,  or  to  arm  himself  with  a  formal 
legal  title,  by  means  of  which,  he  may  be,  at  least  enabled  to  litigateand 
embarrass,  if  not  to  overthrow,  the  right  of  him  whose  title  had  been 
thus  first  begun.  To  refuse  an  injunction  in  such  a  case,  against  an 
impertinent  and  wrongful  intruder  upon  an  inchoate  title,  which 
at  common  law  is  altogether  defenceless,  would  be  to  stand  by  and 
openly  tolerate  a  race  for  the  means  of  litigation  and  strife.  But  the 
principles  upon  which  this  injunction  rests,  must  be  familiar  to  every 
one  at  all  acquainted  with  the  origin  of  land  titles  in  Maryland.  A 
title  to  land  may  be  obtained  from  the  State,  through  the  Land  Office, 
among  other  modes,  either  under  a  common  or  a  special  warrant ; 
but  when  the  legal  title  has  been  perfected  under  either,  it  relates 
back  to  the  date  of  the  special  warrant,  or  the  date  of  the  certificate 
of  survey,  by  which  the  particular  parcel  of  land  was  designated,  as 
that  first  act  distinctly  manifesting  an  intention  to  purchase  that  land 
so  specified.  After  the  taking  of  which  first  step  towards  a  purchase, 
equity  forbids  any  one  else  from  interfering.  And  if  another  person 
does  attempt  to  intrude,  he  may  be  restrained  in  a  summary  way,  by 
a  caveat  in  the  Land  Office.  The  object  of  the  caveat9  as  of 
the  injunction  in  this  instance,  is  to  prohibit  the  defendant  from  ob¬ 
taining  that,  to  which  he  can  have  no  just  claim  ;  and  to  prevent  him 
from  providing  himself  with  the  means  of  mischievous  controversy. 
Upon  these  principles  f  granted  the  injunction  in  this  case,  and  I  still 
feel  satisfied  that  it  was  correctly  granted. 

The  defendants  by  their  answer  have  not  denied,  nor  even  question¬ 
ed  any  one  of  those  facts  uponjwhich  the  plantiffs’  injunction  reposes. 
Those  facts  are  all  of  them  admitted,  or  not  being  denied,  are  now  to 
be  taken  as  true.  But  the  defendants,  taking  an  extensive  range, 
have  gathered  together  and  condensed  in  their  answer,  a  great  mass 
of  facts  and  circumstances,  showing  as  they  say,  the  notoriety  of 
the  public,  and  early  dedication  of  the  ground  in  question  to  the  pur¬ 
poses  of  a  canal.  And  they  allege,  that  there  are  numerous  passes 
between  the  tide  and  Cumberland,  where  the  Potomac  breaks  through 
the  numerous  ridges,  mountains  and  rocky  precipices,  where  it  is 
hemmed  in  by  rocks  and  high  banks  with  a  very  narrow  space  be¬ 
tween,  which  narrow  passes  being  wholly  taken  up  by  the  rail  road, 
leaves  no  room  for  the  canal  to  be  constructed  on  the  same  side  of 
the  river,  but  at  an  enormous  expense,  and  which,  in  fact,  produces 
such  difficulties  as  to  endanger  their  whole  project.  These  allega¬ 
tions  and  their  whole  case,  as  they  state,  are  deducible  from  a  multi¬ 
tude  of  facts,  proceedings,  and  papers,  which  they  have  exhibited  as 
a  part  of  their  answer,  and  all  of  which  they  aver  to  be  public  and 
authentic  documents.  In  this  manner  they  introduce  a  case 
which  as  they  allege,  is  so  sustained,  that  the  Court  might  take  judi¬ 
cial  notice  of  the  facts  of  which  it  is  composed  ;  and  those  facts  be¬ 
ing  so  noticed,  they  give  rise  to  a  countervailing  equity,  which  avoids, 


141 


displaces,  and  altogether  overrules  every  equity  upon  which  the 
plaintiffs,  can  rely  ;  that  the  Court  may  with  as  much  propriety  be 
called  on  now  to  dissolve  the  injunction  in  their  case  so  made  out,  as 
if  they  had  shown  a  public  act  of  the  General  Assembly,  the  opera¬ 
tion  of  which  displaced  the  equity,  or  was  incompatible  with  the 
further  continuance  of  this  injunction.  There  are  some  distinctions 
and  principles  which  it  will  be  useful  to  recall  to  our  recollection,  and 
constantly  to  bear  in  mind,  in  order  to  a  more  perfect  understanding 
of  this  case.  When  speaking  in  a  Court  of  common  law,  or  of  its 
proceedings  and  powers,  a  distinction  is  always  made  between  fact 
and  law ;  and  much  is  said  in  the  books  which  treat  of  their  pro¬ 
ceedings,  of  this  distinction  :  and  it  is  shown  that,  in  some  instances, 
)  fact  and  law  are  inseparably  blended.  The  difficulties  with  which 
those  courts  have  to  contend,  as  to  where  and  how  the  line  should  be 
drawn  between  fact  and  law ,  arises  for  the  most  part  from  the  pecu- 
liarity  of  their  constitution.  They  are  always  constituted  of  two 
distinct  branches,  the  Judge  and  the  Jury.  To  the  Judge  alone, 
belongs  the  right  to  decide  on  the  law,  and  the  Jury  is  only  charged 
with  the  duty  of  finding  the  fact.  All  legal  rules  involve  both  law 
and  fact,  because  the  rule  itself  is  either  declared  to  be  only  applica¬ 
ble  to  a  certain  state  of  facts,  or  it  is  one  which  is  assumed  as  always 
arising  out  of  some  particular  facts.  Every  law  is  then  nothing 
more  than  the  incidental  consequence  annexed  to  the  particular  combi¬ 
nation  of  facts — Ex  facto  oritur  jus.  I  Stark.  Ev  :  406.  3  ath.  36. 
In  speaking  of  the  proceedings  in  a  Court  of  Chancery,  the  same 
distinction  is  made  and  exists  precisely  in  the  same  way  and  to  the 
same  extent  in  all  respects.  The  phrase  is  changed  and  nothing 
more.  We  do  not  here  speak  of  the  distinction  between  fact  and 
law ,  but  of  that  between  fact  and  eqiiityy  excepting  only  so 
far  as  a  reference  is  made  to  the  different  constitution  of  the 
tribunals ;  the  sense  and  meaning  of  the  two  expressions  are 
exactly  the  same  in  all  intents  and  purposes.  And  if  the  Chan¬ 
cellor  were  to  have  associated  with  him  a  jury  for  the  purpose 
of  finding  the  facts,  leaving  him  only  to  decide  upon  the  equity, 
the  same  kind  of  difficulties  would  arise,  and  as  often  in  this  Court, 
as  to  the  proper  distinction  between  fact  and  equity,  as  between  fact 
and  law  in  a  court  of  common  law.  In  the  case  of  Salmon  vs; 
Clagett,  I  endeavored  to  explain  the  principles  by  which  this  Court 
had  been,  and  would  continue  to  be  governed  in  relation  to  motions 
for  dissolving  injunctions.  I  stated  that  there  was,  or,  in  many  cases 
might  be,  a  very  clear  distinction  drawn  between  th c  facts  composing 
the  case,  on  which  the  injunction  rested,  and  those  making  up  the 
whole  case  of  the  bill  on  which  the  relief  was  prayed,  and  the  case 
presented  by  the  answer,  including  as  well  the  facts  set  forth  in  avoid¬ 
ance  of,  as  those  which  are  responsive  to  the  bill.  In  a  word,  that 
as  the  equity  arising  out  of  each  combination  of  facts  essentially 
varied,  it  became  necessary  to  determine,  what  was  that  combina¬ 
tion  of  facts  to  which  the  Court  must  confine  itself  on  a  motion  to 
dissolve  the  injunction  :  and  I  then  declared,  that  it  must  confine 


142 


itself  exclusively  to  the  case,  or  combination  of  facts  set  forth  in  the 
bill  out  of  which  the  equity  of  the  injunction  arose,  and  to  the  an¬ 
swer  of  the  defendant  to  these  facts.  Througli  the  whole  of  the 
explanation  of  this  subject  in  that  case,  I  took  it  for  granted,  that 
the  distinction  between  fad  and  equity  was  pef/ectly  understood  and 
constantly  attended  to,  because  it  was  a  common,  substantial  and 
elementary  one.  I  was  the  more  particular  in  the  explanation  of  the 
peculiar  and  often  circumscribed  nature  of  the  case  on  which  the 
injunction  rested,  because  I  there  showed,  the  loose  and  general  ex¬ 
pressions  of  the  English  books  upon  the  subject,  however  well 
adapted  to  the  course  of  proceedings  in  that  country,  by  no  means 
conveyed  a  correct  notion  of  the  principles  by  which  this  Court  is 
governed,  and  because  I  perceived  that  although  the  New  York  adju¬ 
dications,  which  are  highly  respected  here,  had  in  some  cases  laid 
down  a  rule  as  it  prevails  here,  and  had  declared  it  to  oe  according 
to  the  reason  of  the  thing,  1  Hopk.  276.  4  John.  C.  Rep,  323,  and  al¬ 
so  because  the  no  less  highly  reputable  decisions  of  Virginia  had 
sanctioned  a  course  of  proceedings  in  that  State,  which  was  wholly 
unlike  ours,  and  as  it  seemed  to  me  unsuitable  to  the  constitution  of 
tliis  Court,  1  Hen.  and  Mun. 

In  this  case  much  has  been  3aid  about  the  injunction  granted  by 
the  County  Court  of  Washington.  That  case,  as  I  have  repeatedly 
declared,  has  no  sort  of  necessary  connexion  with  this.  The  wrong 
complained  of  here,  is  the  fact  of  the  defendants’  endeavoring  to  pur¬ 
chase  certain  land  which  the  plaintiffs  were  about  to  purchase,  and 
to  which  they  had  previously  begun  to  acquire  a  legal  title.  Now  I 
have  not  perceived  from  the  pleadings  in  the  case,  or  been  able  to 
gather  from  the  arguments,  that  this  matter  of  controversy  is  in  any 
way  involved  in  that  suit,  or  that  any  judgment  1  can  pronounce  in 
this  case,  can  in  any  manner  bring  this  Court  in  collision  with  the 
Washington  County  Court.  There  was,  in  truth,  no  necessity  to 
have  made  the  slightest  allusion  to  the  suit  in  that  County  Court. 
But  since  that  suit  has  been  fully  and  specially  referred  to  in  this 
bill,  I  will  here  take  occasion  to  remark,  that  this  Court  has  been 
thus  made  to  afford  ah  example  of  the  distinction.  I  endeavored  to 
illustrate  in  the  case  of  Salmon  vs.  Clagett,  between  the  case  on 
which  the  injunction  rests,  and  the  whole  case  of  the  bill  upon  which 
it  prays  relief.  Here,  the  plaintiffs  state  themselves  to  be  purcha¬ 
sers  who  had  taken  the  first  requisite  steps  towards  completing  their 
purchase,  and  were  going  on  to  do  so.  When  these  defendants 
stepped  in,  and  were  attempting  to  take  the  bargain  from  them,  or  to 
put  themselves  in  a  condition  to  contest  their  complete  title,  when  it 
should  be  obtained  :  so  far  the  facts  were  necessary  to  this  injunction. 
The  plaintiffs  then  introduced  all  the  circumstances  of  the  County 
Court,  injunction  and  suit ;  now  those  facts  could  be  of  no  service  to 
them  as  a  basis  for  the  injunction  asked  for  here,  but  at  the  final  hear¬ 
ing  they  might  have  been  of  use,  as  a  reply  to  a  charge  of  laches  in  not 
going  on  with  due  diligence  to  perfect  the  legal  title  they  had  begun, 
had  it  been  alleged  in  the  answer  that  they  w'ere  unworthy  of  belief. 


443 


because  of  any  such  negligence,  since  that  County  Court  injunction 
would  have  sufliciently  accounted  for  the  delay,  and  prevented  its 
being  thence  inferred  that  the  plaintiffs  had  tacitly  abandoned  their 
incipient  title.  For  that  purpose,  and  as  showing  why  the  plaintiffs 
should  be  restored  to  those  advantages  which  they  ought  to  have 
been  allowed  to  derive  from  their  first  step  towards  a  complete  title, 
when  that  injunction,  if  at  all,  shall  have  been  withdrawn  so  as  to 
allow  them  to  proceed,  are  the  only  modes  in  which  any  thing  that  is 
said  about  the  County  Court  suit  can  have  any  bearing  upon  this 
case.  And,  in  this  way,  it  furnishes  an  example  in  this  suit  of  the 
difference  between  the  case  of  the  injunction  and  that  case  :  every 
part  of  which  might  have  been  necessary  to  give  a  sufficient  founda¬ 
tion  for  the  relief  prayed.  In  the  consideration  of  a  motion  to  dis¬ 
solve  an  injunction  on  the  coming  of  the  answer,  it  is  essentially 
necessary  that  these  distinctions  should  be  constantly  borne  in  mind, 
and  that  we  should  be  every  way  careful  not  to  confound  the  equity  and 
merits  of  the  case  with  that  combination  of  facts  of  which  the  case 
is  composed  ;  and  which  gives  rise  to  the  equity  upon  which  the 
injunction  reposes.  These  distinctions  are  our  chief  or  only  guides 
through  the  mazes  of  the  numerous  and  various  allegations,  aver¬ 
ments,  and  arguments,  which  each  one  of  the  parties  may  introduce 
into  the  pleadings,  by  which  he  exhibits  his  case  to  the  Court.  In  a 
Court  of  common  law,  as  regards  the  right  cf  judge  and  jury,  there 
may  be  often  much  difficulty  in  distinguishing  between  fact  and  law ; 
but  here  and  in  cases  of  this  kind,  the  distinction  between  fact  and 
equity  being  deduced  from  the  pleadings  is  more  easily  drawn.  The 
allegations  of  the  pleadings,  so  far  as  regards  facts ,  are  offered  as  by 
a  witness  giving  testimony.  The  averments  of  fact  in  an  injunction 
bill  are  sworn  to  as  by  a  witness  to  cause  the  Court  to  believe  in  their 
truth  ;  and  so  believing  them  to  perceive  the  incident  equity  arising 
therefrom  which  will  authorize  the  granting  an  injunction.  And  a 
defendant  is  bound,  and  may  be  forced  to  make  answer  on  oath,  to  all 
the  facts  so  stated  in  the  bill :  he  responds  in  many  respects  as  a  wit¬ 
ness,  and  his  answer  is  evidence  of  facts,  not  of  equity.  Consequent¬ 
ly,  if  the  pleadings  in  Chancery  are  taken  as  they  certainly  may 
be  to  this  purpose,  as  the  declaration  of  witnesses  testifying  to  facts, 
the  distinction  between  what  must  be  regarded  as  fact  and  not  as 
equity  in  a  bill  or  answer,  will  be  seen  in  a  clear  and  striking  point 
of  view.  A  party  speaking  only  as  witness  canno'tbe  said  to  alter, 
or  cause  belief  in  any  principles  of  equity  by  making  oath  to  their 
existence,  since  they  are  annexed  to  and  made  incidents  beyond  his 
control,  of  certain  combinations  of  facts,  and  the  court  is  bound  in 
the  most  emphatic  sense  to  take  notice  of  all  such  principles  without 
proof.  Therefore,  on  a  motion  to  dissolve  an  injunction,  the  best  test 
of  what  are  properly  averments  of  facts  in  a  bill  or  answer,  is  whe¬ 
ther  they  are  such  matters  as  a  witness  might  be  called  to  prove,  or 
the  truth  of  which  mustj  be  established  by  evidence,  to  enable  the 
Court  to  act ;  if  they  are  not,  then  they  are  cither  sheer  principles  of 
equity,  or  some  of  those  public  and  established  facts,  such  as  the 


144 


constitutionally  appointed  day  of  the  meeting  of  the  General  As¬ 
sembly,  or  the  like,  of  which  the  court  is  bound  to  take  judicial  no¬ 
tice,  without  any  proof  whatever. 

The  defendants,  in  support  of  the  position  that  their  case  is  sub¬ 
stantially  made  up  only  of  such  matters  of  which  the  Court  is  bound  to 
take  notice,  relied  upon  1  Stark.  Ev.  166.  But  the  subject  there 
treated  of,  can  have  no  manner  of  relation  to  this  case  as  it  now 
stands  upon  this  motion.  Here  the  position  taken  that  no  proof  of 
any  kind  can  be  required  ;  there  the  inquiry  is  concerning  the  public 
written  instrument  of  evidence,  the  forms  with  which  they  must  be 
clothed  to  entitle  them  to  be  received  as  such,  and  of  the  nature  of 
the  matter  of  which  they  may  be  deemed  sufficient  proof.  No  one 
will  question  the  soundness  of  the  general  principle  there  laid  down. 
It  amounts  to  no  more  than  this  :  that  the  acts  of  the  whole  Govern¬ 
ment,  or  any  one  of  its  departments,  may  be  shewn  by  giving  in  evi¬ 
dence  those  papers  and  documents  which  are  the  usual  and  establish¬ 
ed  forms  by  which  it  exercises  or  manifests  the  powers  belonging  to 
it.  In  England  the  King  alone  declares  war;  and,  therefore,  a  royal 
proclamation  to  that  effect  is  there  held  to  be  sufficient  evidence  of  a 
state  of  war  :  in  this  country  Congress  alone  can  declare  war;  and 
hence,  here,  no  instrument  short  of  an  act  of  Congress  can  be  deem¬ 
ed  sufficient  evidence  of  the  United  States  having  placed  themselves 
in  a  state  of  war.  This  principle  of  evidence  may,  perhaps,  be  con¬ 
sidered  as  alike  applicable  to  all  countries.  But  the  shewing  that 
certain  papers  and  proceedings  may  be  uset^  as  evidence,  for  any 
purpose,  by  no  means  sustains  the  position  that  the  Court  is  bound  to 
take  notice  of  them  as  public  and  authentic  documents,  2  Camp.  44. 
The  general  princple,  as  illustrated  by  the  authority  relied  on,  applies 
only  to  the  inquiry  what  is  proper  and  sufficient  evidence  of  certain 
facts.  The  question  here  is,  not  as  to  the  nature  or  the  instruments 
of  evidence,  but  whether  the  case  or  the  facts  are  such  of  which  no 
proof  whatever  is  required,  because  of  their  belonging  to  that  class 
of  matters  of  which  the  Court  is  bound  to  take  notice.  The  position 
taken  by  the  defendants  repudiates  all  proof.  They  aver  that  their 
case  is  made  up  of  that  which  gives  them  a  full  dispensation  from  the 
necessity  to  produce  proof  of  any  description ;  and,  therefore,  they 
invite  the  Court  so  to  look  upon  it,  to  sanction  the  proof  of  every 
part  of  it,  and  to  act  accordingly. 

I  take  it  to  be  clear,  that,  as  to  all  those  facts  and  circumstances  of 
which  the  Court  is  bound  to  take  notice  on  a  motion  to  dissolve  an 
injunction,  the  parties  stand  before  it  in  the  same  situation  as  that 
in  which  a  dissolution  is  asked  for,  on  the  ground  that  the  facts  set 
forth  by  the  bill  gives  rise  to  no  equity  upon  which  an  injunction 
ought  to  be  granted.  It  is  a  W'ell  established  principle  in  equity  as 
well  as  at  law,  that  a  plaintiff  can  only  obtain  relief  upon  the  strength 
of  his  own  claim,  and  not  upon  the  weakness  of  that  of  his  ad¬ 
versary  ;  and,  therefore,  if  it  should  appear  that  the  facts  as  stated 
in  the  bill,  looking  to  it  alone,  gave  rise  to  no  equity,  it  is  very  cer¬ 
tain  that  the  injunction  would  be  dissolved,  whether  the  defendants 


145 


had  answered  or  not,  or  however  imperfectly  he  might  have  answer- 
ed.  Let  it  then  be  supposed  that  an  injunction  had  been  granted  to 
restrain  the  making  of  a  canal,  or  the  doing  of  any  other  act,  under 
an  impression  that  the  defendant  had  been  clothed  with  no  authority 
to  do  the  act  complained  of,  and  it  should  be  afterwards  shewn  to  the 
Chancellor  that  a  public  act  cf  the  General  Assembly,  of  which  he 
was  bound  to  take  notice,  had  fully  authorized  that  very  act.  It  is 
certain  that  he  would,  in  such  case,  immediately  dissolve  the  injunction 
even  without  an  answer,  or  without  regard  to  the  imperfections  of  the 
answer ;  consequently,  if  the  exhibits  of  these  defendants  be  in  truth 
as  they  have  alleged,  such  public  and  authentic  documents  as  the 
Court  is  bound  to  notice,  they  might,  by  merely  reading  them  to,  or 
reminding  the  Court  of  them,  have  obtained  all  the  benefit  from  them 
which  they  could  have  had  in  any  other  way.  If  taken  altogether, 
or  separately,  they  give  rise  to  such  an  equity  as  is  incompatible  with 
that  on  which  the  injunction  rests;  it  must  be  dissolved.  This  might 
be  done  by  the  defendants  without  making  any  answer,  but  a  defend¬ 
ant  may  in  general  insist  on  any  matter,  by  way  of  answer,  which  he 
may  take  advantage  of  by  plea  or  demurrer.  Here  the  answer 
relies  expressly  upon  that  countervailing  equity  arising  out  of 
the  combination  of  facts  which  it  has  set  forth  in  avoidance  of  the  plain¬ 
tiffs’  case,  and,  therefore,  if  those  facts  are  such  as  the  Court  is  bound 
to  notice,  their  being  couched  in  the  form  of  an  answer,  cannot  re¬ 
lease  the  Court  from  that  obligation,  nor  can  they  be  thus  rendered 
in  any  manner  less  acceptable  to  the  Court,  or  less  available  to  the 
plaintiffs,  than  if  they  had  been  shewn  in  any  other  way. 

It  is  laid  down  as  clear  law  that  no  evidence  can  be  required  to 
prove  the  existence  of  a  fact  which  must  have  happened  according 
to  the  constant  and  invariable  course  of  nature,  or  to  prove  any  ge¬ 
neral  law  or  other  publifc  matter  of  which  the  Courts  are  bound  to 
take  judicial  notice.  An  act  of  Assembly  relating  to  a  public  high¬ 
way,  is  a  public  act  of  which  they  will  take  notice,  but  of  private 
acts  they  take  no  notice,  1  Stark.  Ev.  163,  400.  They  take  notice  of 
the  order  and  course  of  proceedings  in  each  of  the  two  Houses  of  the 
General  Assembly,  1  Saund.  131,  but  not  of  their  journals  or  votes 
and  proceedings,  l  Ld.  Raym.  15,  nor  are  those  journals  when  prov¬ 
ed  evidence  of  any  facts  stated  in  the  resolutions  or  reports  of  com¬ 
mittees,  which  are  not  a  part  of  the  proceedings  of  the  House,  1  Stark. 
Ev.  167.  The  Courts  of  Justice  of  the  several  States  must  take 
notice  of  all  public  acts  of  Congress,  even  including  (as  may  be 
admitted  in  this  case)  those  which  relate  exclusively  to  the  municipal 
affairs  of  the  District  of  Columbia,  but  they  arc  not  bound  to  notice 
any  foreign  law,  or  law  of  any  other  State  of  the  Union.  The  acts 
of  the  other  States  of  the  Union,  to  be  admitted  even  as  evidence, 
must  be  authenticated  according  to  the  act  of  Congress.  The 
Courts  of  Justice  arc  also  bound  to  take  notice  of  the  civil  geography 
of  the  State,  as  of  the  counties,  districts,  and  cities,  established  by 
the  State  Government,  and  also  of  the  districts  and  ports,  which  are 
the  divisions  made  of  it  by  the  Federal  Government :  but  they  do  not 
17 


146 


notice  the  local  situation  of  places  within  particular  counties,  or  the 
distance  of  counties  from  each  other,  4  Bar.  and  Aid.  243.  And,  a! 
though  they  will  notice  to  extent  of  ports,  1  Stra.  469,  yet  the  strait 
ening  of  a  port  by  building  too  far  into  the  water,  where  ships  and 
vessels  might  have  formerly  ridden,  is  a  matter  of  which  they  cannot 
take  notice,  but  it  is  a  question  of  fact,  to  be  determined  by  a  Jury 
upon  evidence,  Haig.  Tr.  85.  As  regards  the  subject  now  under  con¬ 
sideration,  the  obligation  of  the  Courts  of  Justice  to  take  notice  of 
various  matters  and  things,  extends  thus  far  and  no  farther.  It  only 
remains  to  inquire,  therefore,  whether  those  matters  which  the  de¬ 
fendants  have  condensed  into  the  form  of  an  answer,  and  proffered  to 
the  consideration  of  the  Court,  are  some  of  those  of  which  it  is  bound 
to  take  judicial  notice.  The  line  of  road  to  be  formed  by  the 
plaintiffs,  and  the  canal  to  be  constructed  by  the  defendants,  are  both 
of  them  declared  to  be  public  highways;  and, therefore,  the  several 
acts  by  which  they  have  been  incorporated,  are  public  law3  of  which 
the  Court  is  bound  to  take  notice.  The  acts  of  Congress,  and  of  the 
other  States  of  the  Union,  in  relation  to  those  two  public  highways, 
may  also  be  noticed  on  the  ground  that  they  have  been  called  for,  re¬ 
cognized,  and  adopted,  by  public  laws  of  this  State,  which  have  ac¬ 
tually  taken  effect.  But  no  private  act  of  this  State,  nor  any  legisla¬ 
tive  enactment  of  any  other  State,  which  has  not  been  thus  expressly 
invoked,  and  in  a  manner  introduced  into  the  body  of  our  public  sta¬ 
tute  law,  can  be  noticed  by  this  Court ;  and,  therefore,  none 
of  the  acts  of  the  Legislature  of  Virginia,  or  any  other  State, 
passed  prior  to,  or  which  have  not  been  adopted  by  those  acts  of 
ours,  of  1826,  ch.  123,  and  1824,  ch.  7 9,  by  which  the  plaintiffs 
and  the  defendants  have  been  incorporated,  can  be  now  noticed. 
It  is  also  certain,  that  all  the  Journals,  Reports  of  Committees,  and 
every  thing  else,  found  among  the  proceedings  of  any  legislative  body, 
must,  upon  the  present  occasion,  be  laid  aside  as  matters  which  the 
court  cannot  now  notice.  As  to  the  multitude  of  private  papers,  refer¬ 
red  to  in  the  answer,  such  as  proceedings  of  sundry  meetings  of  re¬ 
spectable  people,*  who  gave  themselves  the  name  of  conventions,  pri¬ 
vate  letters,  and  the  like,  as  it  has  not  been  very  seriously  contended, 
that  they  should  be  noticed,  and  considered  as  public  and  authentic 
documents,  in  any  respect,  so  as  to  affect  the  rights  of  property  any 
where,  or  to  any  extent,  I  may,  without  scruple  or  hesitation,  throw 
aside  the  whole  mass  of  papers  of  that  description,  at  least  for  the 
present,  as  utterly  unworthy  of  being  judicially  noticed,  without 
proof,  for  any  purpose  whatever. — Bui  the  defendants  in  their  an¬ 
swer  say  “  that  at  the  Point  of  Rocks  where  the  Potomac  intersects 
the  ridge  of  the  Catoctin  Mountain,  and  where  the  pretended  route 
of  the  said  Rail-Road  is  described  by  the  compainants,  in  their  said 
bills  to  strike  the  Potomac  river;  there  is  one  of  those  narrow  pas¬ 
ses  in  the  actual  route  and  site  of  the  canal,  as  officially  and  definitely 
selected,  surveyed,  and  laid  down  as  aforesaid,  which  presents  no 
choice  of  ground  for  the  canal,  but  w  here  for  a  considerable  distance 
up  the  river  along  the  foot  of  the  mountain  and  its  spurs,  the  canal 

• 


147 


is  confined  by  the  nature  of  the  ground  within  certain  primeval  and 
immoveable  barriers,  as  is  more  particularly  shown  and  illustrated 
by  the  topographical  descriptions,  maps  and  profiles  of  the  Engineers, 
herewith  exhibited  and  above  referred  to.  Through  the  whole  of  this 
pass,  the  space  between  the  jutting  and  precipitous  rocks  on  the  one 
hand,  and  the  river  on  the  other,  is  so  narrow,  that  in  order  to  ob¬ 
tain  the  proper  and  necessary  breadth  for  the  canal  and  its  towing 
path,  a  solid  and  wide  wall  must  be  constructed  in  the  river,  and  if 
the  canal  be  intercepted  and  cut  off  by  the  Rail-Road,  or  otherwise 
from  that  single  route  through  this  pass,  it  must  be  completely  in¬ 
tercepted  and  cut  off  from  the  whole  of  its  route  above,  and  be  either 
entirely  stopped  and  defeated,  or  compelled  to  the  precarious,  dan¬ 
gerous,  and  enormously  expensive,  and  every  way  inconvenient  and 
burthensome  expedient  of  crossing  to  the  opposite  side  of  the  river, 
on  an  aqueduct,  and  then  in  order  to  regain  its  route  to  its  western 
terminus,  of  recrossing  the  river  on  another  such  aqueduct,  at  such 
unknown  and  uncertain  point  above,  certainly  not  lower  than  Cum¬ 
berland,  as  where  it  may  please  the  complainants  to  allow  them 
verge  and  space  enough. 99  From  this,  the  defendants  argue,  that  as 
by  an  act  of  Congress,  which  the  courts  of  justice  are  all  bound  to 
notice,  the  President  was  authorized  to  order  surveys  to  be  made  of 
the  most  suitable  routes  for  roads  and  canals,  that  therefore  this 
court  must  take  notice,  that  the  President  did  execute  that  law,  by 
ordering  surveys  to  be  made,  that  one  of  those  surveys  was  made 
expressly  for  this  canal,  as  a  location  of  its  route,  and  as  a  first  step 
towards  an  absolute  appropriation  of  the  land,  along  that  route,  to 
its  use,  that  the  maps  and  profiles  now  shown,  are  those  made  to 
exhibit  the  result  of  that  survey ;  and  that  those  maps  and  profiles 
clearly  show  that  the  canal  has  been  either  altogether  intercepted 
and  cut  off,  or  most  illegally  and  ruinously  turned  aside  from  its 
rightful  and  destined  route,  by  the  Rail-Road.  This  is  drawing  con¬ 
sequence  from  consequence,  and  piling  notice  upon  notice,  to  a  great 
extent  and  height  indeed.  The  act  of  Congress  as  a  public  law,  it  is 
true,  must  be  noticed,  and  because  the  law  presumes  that  every  officer 
has  properly  performed  his  duty  until  the  contrary  appears,  it  must 
be  admitted  that  the  President  did  order  some  surveys  to  be  madef 
as  required  by  that  public  law  ;  but  there  is  no  adjudged  case,  or 
principle  of  law,  which  declares  it  to  be  the  duty  of  the  courts  to 
take  judicial  notice  of  the  execution  of  any  public  statute  whatever. 
If  they  were  bound  to  take  notice  of  the  manner  in  which  this  public 
act  of  Congress  had  been  executed,  then,  upon  the  same  principle, 
they  would  be  bound  to  notice  the  manner  in  which  every  public 
statute  was  executed.  There  are  many  public  statutes  requiring 
acts  to  be  performed,  by  Justices  of  the  Peace  and  Constables,  but  to 
take  judicial  notice  of  the  manner  in  which  such  officers  had  exe¬ 
cuted  a  public  statute,  and  so  to  admit  their  ex  parte  proceedings  to 
affect  the  rights  of  property,  would  be  absurd  and  mischievous.  The 
various  modes  in  which  the  public  statutes  are  carried  into  effect,  by 
the  executive  officers  of  our  Government,  are,  in  principle  and  in  law, 


148 


all  proceedings  of  the  same  character;  they  are  mere  facts ,  and  are 
not  some  among  those  public  proceedings  of  which  the  courts  of 
justice  are  bound  to  take  notice;  consequently,  when,  where,  and 
how  those  surveys  were  made,  as  authorized  by  the  act  of  Congress, 
and  the  topographical  maps  and  profiles  exhibiting  the  results  of  any 
of  them,  are  all  matters  of  fact,  to  be  shown  and  established  by 
proof;  and  even  when  they  shall  have  been  so  established,  it  will 
remain  a  question,  how  far  they  can  be  received  even  as  evidence, 
to  affect  the  interests  of  any  one,  who  was  not  a  party  to  their  being 
made,  or  who  had  not,  in  any  way  admitted  their  verity  and  correct¬ 
ness  ;  abstracting  then  every  thing  from  the  case  of  the  defendants, 
of  which  the  court  cannot  take  notice ;  and  there  remains  nothing 
left  to  them,  with  which  they  can  assail  the  equity  of  the  plaintiffs, 
except  their  several  acts  of  incorporation,  but  with  these  alone,  they 
have  attempted  to  maintain  their  ground. 

I  have  read  the  act  incorporating  the  plaintiffs,  and  also  that  in¬ 
corporating  the  defendants,  and  compared  them  with  each  other. 
These  two  bodies  politic  are  entirely  distinct  in  all  respects ;  there 
is  not  one  single  sentence  in  the  acts  by  which  either  has  been  in¬ 
corporated,  which  has  the  most  remote  allusion  to  the  other,  nor 
does  the  sense  of  any  expression  contained  in  either  of  their  acts  of 
incorporation,  in  the  slightest  degree,  indicate  that  there  probably 
may,  or  possibly  can  arise  any  jarring  between  their  respective 
franchises,  or  collision  of  their  several  interests  in  any  way  what¬ 
ever.  From  all  or  any  thing,  apparent  from  the  face  of  those  legis¬ 
lative  enactments,  there  is  no  room  to  infer  that  each  one  of  these 
two  corporations  may  not  proceed  in  all  their  operations,  without 
the  least  interference  with  the  other.  If  then,  upon  the  face,  and 
according  to  every  fair  reading  of  these  several  acts  of  incorpora¬ 
tion,  all  is  harmonious  between  them,  the  discord  can  only  have 
arisen  from  the  manner  of  executing  the  one  or  the  other,  or  both  of 
those  laws,  and  in  no  other  way ;  and  that  this  controversy  between 
these  parties  has  only  originated  in  that  way,  appears  to  be  admitted 
by  the  defendants  themselves. 

In  their  answer  they  say  that  “  according  to  the  complainants* 
own  showing,  and  the  facts  are  otherwise  true  and  notorious, 
they  have  the  choice  of  two  or  more  practicable  routes  for 
their  Rail-Road,  without  any  interference  with  the  canal,  or  con¬ 
nexion  with  or  even  approximation  of  the  river;  the  different 
routes  only  presenting  some  differences  in  the  comparative  labor, 
and  expense  of  construction,  and  these  compensated,  if  they  occur 
with  any  considerable  increase  on  the  more  northern  route,  original¬ 
ly  proposed  for  the  Rail  Road,  by  the  advantages  and  savings  from 
directness  of  course  and  shortness  of  distance,  as  the  principal  and 
leading  personages,  both  among  the  original  projectors  and  promoters, 
and  the  present  managers  and  proprietors  of  the  Rail  Road,  have  re¬ 
peatedly  averred  and  publicly  contended,  the  principle  and  the  op¬ 
eration  of  the  lifting  power  of  stationary  steam  engines,  by  which 
the  Rail  Road  overcomes  ascents  and  gains  new  levels,  admit  of  an 


149 


infinitely  greater  diversity  and  extent  of  application  than  that  of  the 
canal,  circumscribed  and  limited  as  it  is  by  water  levels,  and  are 
perfectly  practicable  and  convenient,  and  within  the  ordinary  compass 
of  that  power,  either  to  overcome  all  the  necessary  ascents  on  the 
more  northern  and  direct  route  first  proposed  for  the  said  Rail  Road, 
or,  if  what  the  complainants  designate  the  southern  and  circuitous 
route  be  preferred  by  them,  to  assume,  with  ease  and  convenience,  a 
higher  level  than  the  canal  on  that  route,  and  leave  the  canal  ample 
verge  and  room  between  the  Rail  Road  and  the  river :  there  is  no 
necessary  or  proper  connexion  or  dependence  between  the  Rail  Road 
and  the  river,  either  extrinsically  as  regards  the  construction,  appen¬ 
dages,  and  uses  of  the  Rail  Road,  or  relatively  as  regards  the  pur¬ 
poses  of  intercourse,  trade,  and  commerce  wnich  the  Rail  Road  was 
designed  to  subserve  :  Whereas  the  river  is,  as  it  were,  the  life-blood 
of  the  canal,  and  continual  access  and  frequent  communication  from 
one  to  the  other,  are  inseparable  from  the  very  idea  of  the  canal. 
Here  it  is  distinctly  alleged,  by  the  defendants,  that  the  injury  they 
complain  of,  has  arisen  altogether  from  the  location  which  the  plain¬ 
tiffs  have  given  to  their  road  under  this  act  of  incorporation — that  is, 
not  from  the  law  itself,  but  from  the  execution  of  the  law. 

The  defendants  insist,  that,  by  virtue  of  their  grants  and  franchi¬ 
ses,  they  have  a  priority  of  right  to  the  choice  and  selection  of  the 
route  and  site  of  their  canal  along  the  margin  and  bank  of  the  river 
Potomac.  They  mainly  and  in  every  way  rest  upon  this  priority  of 
right  to  a  choice  of  routes.  If  it  exists  at  all,  it  must  be  founded  up¬ 
on  the  various  facts  and  circumstances  as  shewn  by  them,  when  taken 
in  connexion  with  the  acts  of  the  General  Assembly,  by  which  they 
have  been  incorporated,  or  it  must  be  based  upon  those  acts  of  Assem¬ 
bly  alone.  But  if,  as  in  the  first  supposition,  its  foundation  is  com¬ 
posed  of  those  facts,  taken  with  the  law,  then  it  certainly  cannot 
avail  them  upon  the  present  motion,  because  it  has  been  shewn  those 
facts  are  none  of  them  of  that  character  of  which  the  court  can  now 
take  notice  and  act  upon.  Take  the  other  supposition,  and  let  their 
alleged  right  be  admitted  to  have  been  expressly  given  by  a  public 
law,  of  which  the  court  must  take  notice,  even  then  they  cannot  avail 
themselves  of  it  upon  the  present  motion,  because  they  have  been  de¬ 
prived  of  it,  as  they  themselves  state,  not  by  the  act  itself  by  which 
these  plaintiffs  have  been  incorporated*but  by  the  manner  in  which 
that  law  has  been  executed,  which  mode  of  executing  the  law  is  clear¬ 
ly  a  matter  of  fact,  of  which  this  court  cannot  now  take  notice.  I  do 
not  understand  that  the  defendants  contend  for  an  arbitrary  and  whim¬ 
sical  right  of  choice,  which,  without  regard  to  their  own  real  inter¬ 
ests,  may  be  capricioJfcy  turned  against  the  plaintiffs  or  any  others, 
merely  for  the  purpose  of  intercepting  their  line  of  operations.  They 
certainly  cannot  claim  such  a  right  with  any  design  of  using  it  for 
the  very  same  evil  purposes  of  which  they  themselves  now  complain  ; 
jt  must  he,  therefore,  that  the  right  of  choice  for  which  they  contend, 
is  one  which  in  its  exercise  is  to  he  governed  by  fairness,  justice,  and 
equity.  If  this  be  the  kind  of  right  for  which  they  contend,  and 


150 


none  other  could  be  sanctioned  by  a  Court  of  Equity,  then  it  is  evi¬ 
dent  that  the  court  lias  not,  as  yet,  been  .furnished  with  the  means  of 
forming  any  fair  and  correct  judgment  upon  the  subject.  It  has 
heard,  so  far,  only  the  allegations  of  one  side,  and  that,  too,  without 
any  proof  in  support  of  those  allegations  which  it  can  allow  itself  to 
notice  and  act  upon.  The  bill  and  all  the  allegations  of  the  plaintiffs 
are  perfectly  silent  in  respect  to  this  right  of  choice  as  now  claimed 
by  the  defendants.  The  claim  and  every  fact  relating  to  it  make  their 
appearance  for  the  first  time  in  the  answer  of  the  defendants.  The 
plaintiffs  could  not  be,  nor  were  they  expected  to  come,  prepared  for 
a  vindication  of  their  rights,  so  far  as  they  are  implicated  by  this 
claim,  their  case  is  shewn  by  their  bill,  either  as  necessary  to  an  in¬ 
junction  or  to  relief,  called  for  no  such  disclosures  as  the  defendants 
have  set  forth  respecting  this  claim  of  a  right  of  choice,  and  conse¬ 
quently  every  thing  relating  to  it  is  entirely  new  matter,  advanced  in 
avoidance  of  the  plaintiff’s  case,  and  concerning  which  they  have  yet 
had  no  opportunity  to  shew  any  thing  on  their  part.  Justice  and 
equity,  therefore,  do  most  manifestly  require  that  the  injunction  here¬ 
tofore  granted  upon  an  equity  which  the  defendants  have  been  unable 
otherwise  to  controvert,  should  be  continued  until  the  validity  and  ex¬ 
tent  of  the  claim  of  the  defendants  can  be  examined  and  ascertained 
upon  surveys  and  evidence  which  each  party  may  be  allowed  to  make 
and  produce,  and  from  which  the  court  may  be  furnished  with  the 
means  of  determining  whether  or  not  these  two  apparently  harmoni¬ 
ous  acts  of  incorporation  have,  in  reality,  by  the  improper  execution 
of  one  of  them,  been  brought  into  ruinous  conflict  with  each  other. 

If,  upon  an  order  of  survey  authorizing  these  parties  to  lay  down 
their  respective  pretensions  in  the  usual  manner,  and  on  the  return  of 
such  topographical  maps  and  profiles  as  maybe  specially  directed,  if  re¬ 
quired,  the  fact  appears  that  the  location  of  the  Rail  Road  does  de¬ 
prive  the  canal  of  its  most  suitable  and  advantageous  route,  then  the 
question  will  fairly  arise  and  be  correctly  presented  to  the  court, 
whether  the  defendants  have  a  priority  of  right  to  the  choice,  and  se¬ 
lection  of  a  route  for  their  canal,  or  not.  The  extent  of  the  interfe¬ 
rence  and  the  nature  of  the  collision  between  these  two  bodies  politic 
will  then  and  in  that  way,  be  clearly  and  properly  presented,  accord¬ 
ing  to  the  shewing  and  proofs  of  both  parties. 

Whereupon  it  is  on  this  2^th  day  of  September,  1829,  Ordered , 
That  the  injunction  heretofore  granted  in  this  case  be,  and  the  same 
is  hereby,  continued  until  the  final  hearing  or  further  order. 

THEODORICK  BLAND,  Chr. 

# 

♦Test,  RAMSAY  WATERS, 

Reg.  Cur.  Can. 


True  copy : 


151 


THE  CHESAPEAKE  AND  OHIO  CANAL  COMPANY 

vs. 

THE  BALTIMORE  AND  OHIO  RAIL  ROAD  COMPANY, 


To  Washington  County  Court,  1 
Sitting  as  a  Court  of  Equity.  j 

This,  the  bill  of  complaint,  and  injunction  of  the  “  Chesapeake 
and  Ohio  Canal  Company,  and  of  the  Potomac  Company,”  respect¬ 
fully  shews,  that,  in  the  due  pursuance  and  execution  of  the  concur¬ 
rent  acts  and  compact  of  the  States  of  Virginia  and  Maryland,  and 
of  the  United  States  in  Congress  assembled,  for  incorporating  the 
said  Chesapeake  and  Ohio  Canal  Company,  subscriptions  have  been 
opened  for  the  stock  of  the  said  Company,  consisting  of  six  millions 
of  dollars,  divided  into  sixty  thousand  shares,  of  one  hundred  dollars 
each,  whereof  more  than  one  fourth,  and  of  the  major  part  of  the 
said  stock  has  been  duly  subscribed,  and  among  other  of  such  sub¬ 
scriptions,  the  Secretary  of  the  Treasury  of  the  United  States,  for 
and  in  behalf  of  the  United  States,  has  duly  taken,  in  pursuance  of 
the  act  of  Congress  for  that  purpose  enacted,  10,000  shares,  one 
million  of  dollars;  the  State  of  Maryland,  5,000  shares — 500,000 
dollars;  the  Corporation  of  Washington,  10,000  shares— 1,000,000 
dollars  ;  the  Corporation  of  Georgetown,  2,500  shares — 250,000 
dollars  ;  the  Corporation  of  Alexandria,  2,500  shares — 250,000  dol 
lars;  and  divers  individual  subscribers  in  different  parts  of  the  Unit¬ 
ed  States,  between  5,000  and  6,000  shares — 500,000  or  600,000  dol 
lars  :  that,  in  virtue  of  these  subscriptions,  the  said  company  has 
become  duly  organized  and  incorporated  as  a  body  politic  or  corpo¬ 
ration  aggregate,  according  to  the  terms  and  condition  of  its  char, 
ter,  so  established  by  concurrent  acts  and  compacts  as  aforesaid  : 
that,  in  the  further  pursuance  and  execution  of  the  said  charter,  the 
Commissioners  duly  appointed  by  the  Executives  of  Virginia  and 
Maryland,  and  the  President  of  the  United  States,  have  called  a 
general  meeting  of  the  ^id  subscribers  on  Friday,  the  20th  day  of 
the  present  month  of  June,  at  the  City  Ilall,  in  the  City  of  Wash  ¬ 
ington,  for  the  purpose  of  electingJfa  President  and  six  Directors,  for 
conducting  the  undertaking  of  the  said  canal,  and  managing  the  said 
company’s  business,  of  which  call,  and  of  the  time  and  place  of  meet¬ 
ing,  the  said  Commissioners  have  given  due  notice  by  advertisements 
in  the  public  papers,  as  required  by  the  said  charter,  at  which  meet¬ 
ing  the  said  company  will  proceed  to  make  due  election  of  the  said 
« President  and  Directors,  who,  immediately  upon  their  election  will 
proceed  to  cause- the  site  of  the  said  canal  to  be  definitively  surveyed 
and  laid  down,  and  the  work  to  be  commenced  without  delay,  and 
these  Complainants  aver,  that  there  is  no  wish,  intention,  or  motive 
whatsoever,  for  the  said  company,  or  the  said  President  and  Direc- 


152 


tors  to  delay,  for  an  instant,  the  commencement  and  prosecution  of 
the  work  ;  but  that  it  is  their  true  and  bona  fide  intention  to  proceed 
in  the  same  with  all  practicable  despatch  and  energy,  That  the  said 
Potomac  Company  have  duly  assented  to  the  said  charter,  and  all  the 
provisions  of  the  same,  and  have  duly  empowered  their  President 
and  Directors  to  surrender  their  charter,  and  convey,  in  due  form  of 
law,  to  the  Chesapeake  and  Ohio  Canal  Company,  all  the  property, 
rights  and  privileges  by  them  owned,  possessed,  and  enjoyed,  under 
their  said  charter,  which  surrender  the  said  Chesapeake  and  Ohio 
Canal  Company  are  ready  and  willing  to  accept,  and  the  same  will 
he  speedily  made  and  accepted  ;  in  the  mean  time  the  said  Potomac 
Company  retaining  its  corporate  existence  and  capacity,  and  these 
Complainants  further  shew,  that,  by  the  terms  of  their  said  charter, 
the  exclusive  use  and  appropriation  of  the  river  Potomac,  and  all  its 
tributary  streams,  and  of  the  adjacent  lands  in  Maryland  and  Vir¬ 
ginia,  and  the  .District  of  Columbia,  necessary  for  the  construction 
of  the  said  canal,  and  its  incidental  or  auxiliary  works  and  appen¬ 
dages,  are  vested  in  the  said  company  by  indefeasible  grant  and  com¬ 
pact,  from  the  concurrent  authorities  of  the  said  States  and  of  the 
United  States,  and  that  such  grant  is  not  only  entitled  to  all  the  im¬ 
munities  and  privileges  of  priority  in  point  of  time,  but  is  founded 
on  higher  and  more  irrepealable  sanctions  than  any  other  grant  or 
charter  that  can  possibly  interfere  with  it,  inasmuch  as  the  said  com* 
pany  is  not  only  entitled  to  protection  under  the  Constitution  of  the 
United  States  upon  the  general  faith  and  obligation  of  contracts, 
against  any  legislative  infringement  of  their  grant,  but,  as  no  State 
or  sovereignty  whatsoever  is  competent,  by  any  legislative  act,  or 
other  erection  of  power  whatsoever,  in  any  manner  to  change,  alter 
or  modify  the  terms  of  the  said  grant,  or  the  rights  and  privileges 
thereby  conferred  without  the  express  assent  and  concurrence  of  all 
the  three  sovereignties  by  whose  authority  and  compact  the  said 
charter  was  established  :  that  the  construction  of  the  said  canal,  as 
described  in  the  said  charter,  has  been  for  a  long  time,  and  before  the 
enactment  of  the  said  charter,  and  since  the  enactment  and  before 
the  actual  organization  of  the  said  company,  by  means  of  the  said 
subscriptions  as  aforesaid,  a  concern  of  high  public  interest  and  im¬ 
portance  to  most  of  the  States,  and  in  particular  to  the  Congress  of 
the  United  States,  and  to  the  States  of  Virginia  and  Maryland,  and 
the  citizens  thereof,  insomuch  that,  in  the  year  1821,  preparatory 
examinations  and  surveys  were  instituted  by  the  Legislatures  of  the 
said  two  States,  by  Commissioners  appointed  under  their  authority, 
in  order,  among  other  things,  to  report  the  most  practicable  and  ad¬ 
vantageous  means  of  carrying  that  great  scheme  into  effect,  and  to  the 
report  of  these  Commissioners  your  Complainants  refer  :  And,  after 
the  enactment  of  the  said  charter,  and  before  the  said  subscriptions 
were  filled  up  as  aforesaid,  the  Congress  of  the  United  States  autho¬ 
rized  and  directed  the  route  of  the  said  proposed  canal  to  be  surveyed 
and  laid  dow  n  by  the  Board  of  Engineers  for  internal  improvement, 
&c.  in  pursuance  of  which  authority  and  direction  the  President  of 


153 


the  United  States  caused  official  surveys  and  estimates  of  the  cost  of 
the  said  canal  to  be  made  by  a  brigade  or  detachment  of  the  said  En¬ 
gineers,  whose  report  in  detail  was  communicated  by  the  President 
to  Congress,  in  December,  1826,  since  which  fresh  inspections  of  the  • 
same  route,  and  further  and  more  accurate  estimates  of  the  cost  have 
been  made  by  other  Engineers  under  the  authority  of  Congress, 
whose  report  and  estimated  have  also  been  communicated  to  Congress 
by  the  President,  this  last  inspection  and  estimate  having  been  sug¬ 
gested  by,  and  instituted  at  the  request  of  a  highly  respectable  Con¬ 
vention  of  Delegates  from  several  States,  both  East  and  West  of  the 
Alleghany  mountain,  assembled  at  Washington,  in  conjunction  with 
Delegates  from  the  District  of  Columbia,  and  styled  the  Chesapeake 
and  Ohio  Canal  Convention,  being  a  convention  delegated  from  those 
States  and  District,  expressly  for  the  purpose  of  concerting  measures 
to  fulfil  the  earnest  hopes  and  wishes  of  the  People  for  the  execution 
of  this  great  and  beneficial  undertaking:  to  all  which  surveys,  re¬ 
ports,  estimates  and  proceedings,  preparatory  and  consequent  there¬ 
to,  your  Complainants  pray  that  due  reference  may  be  had  ;  and 
these  Complainants  further  shew,  that  the  said  Engineers,  in  execu¬ 
tion  of  the  duties  and  authority  of  their  said  appointment,  have,  among 
other  things,  surveyed  and  made  an  official  report  and  return  of  their 
survey  of  the  route  of  the  said  canal  from  Pittsburgh,  in  Pennsylva¬ 
nia,  to  a  point  in  Alleghany  County,  in  this  State,  near  Cumberland, 

*  and  thence  to  tidewater  in  the  District  of  Columbia,  which  survey  with 
the  other  documents  accompanying  the  same,  is  duly  filed  and  recorded 
in  the  Department  of  War,  and  with  more  recent  estimates  made  by  the 
other  engineers  as  aforesaid,  was  communicated  by  the  President  in 
a  public  message  to  Congress,  as  aforesaid,  and,  constituted  the  prin¬ 
cipal  public  evidence  of  the  practicability,  economy  and  expediency, 
of  the  measure,  upon  which  Congress  at  their  last  session,  passed  the 
act  authorizing  said  subscription  by  the  Secretary  of  the  Treasury  : 
and  these  complainants  are  well  informed,  have  good  reason  to  be¬ 
lieve,  and  do  verily  think  and  believe,  that  the  site  and  route  of  the 
said  canal  and  of  its  feeders  and  auxiliary  works,  as  surveyed  and 
laid  down  as  aforesaid,  will,  and  are  bona  fide ,  intended  to  consti- 
ture  the  main  site  and  route  of  such  canal,  feeders  and  other  works, 
with  little  or  no  deviation  now  known  or  anticipated ;  though  it  may 
possibly  and  probably  happen  that  when  their  engineers  come  to 
lay  down  the  practical  working  plan  of  the  w  ork,  some  slight  varia¬ 
tions  in  the  detail  may  be  necessary,  but  no  material  variation  from 
the  main  route  or  site  already  surveyed  and  ascertained,  as  afore¬ 
said  :  At  any  rate,  these  complainants  insist,  and  are  well  advised, 
that  they  have  a  good  and  indefeasible  right  to  insist,  that  they  have  the 
clear  and  absolute  pre-emption  and  election,  under  their  said  charter, 
of  such  route  and  site,  in  preference  to  all  other  persons  and  corpo¬ 
rations,  and  companies,  whatsoever,  that  they  cannot  be  rightfully 
restricted  in  their  choice,  of  the  most  eligible  route,  if  more  than  one 
be  practicable ;  and  that  within  the  legitimate  sphere  and  compass 
of  such  their  choice  and  election,  no  other  person,  corporation,  or 
18 


154 


company,  whatsoever,  has  any  right  or  authority  to  forestall  the 
first  choice,  and  throw  upon  these  complainants  the  necessity  to  adopt 
any  particular  one,  of  any  number  of  possible  routes,  if  there  he 
more  than  one,  far  less,  to  oust  these  complainants  of  the  only  prac¬ 
ticable  and  convenient  route  :  And  these  complainants  fuither  shew, 
that  certain  persons,  styling  themselves  the  Baltimore  and  Ohio 
Rail  Road  Company,  incorporated  by  the  act  of  Assembly,  passed 
for  that  purpose,  by  the  General  Assembly  of  Maryland,  on  the  28th 
day  of  February,  1827,  (to  which  these  complainants  refer)  and  their 
agents  and  attornies,  have,  under  pretence  of  exercising  the  corporate 
authority  and  privileges  granted  to  them  by  their  said  charter, 
caused  a  route  for  their  said  proposed  rail  road,  to  be  surveyed  and 
laid  down,  following  the  margin  of  the  river,  or  the  meanders  of  the 
low  grounds  near  the  margin  of  the  river  Potomac,  that  the  route 
and  site  of  the  said  road,  so  surveyed  and  laid  down,  directly  and 
necessarily  interferes  with  the  route  and  site,  necessary  and  proper  for 
the  said  canal,  and  its  incidental  works,  and  which  the  said  Balti¬ 
more  and  Ohio  Rail  Road  Company  (who  these  complainants  pray, 
may  be  made  defendants  to  this  bill,)  their  agents  and  attornies  had 
due  notice,  and  well  knew,  were  intended  and  were  necessary  to  be 
located  on  the  same  route  and  site,  so  surveyed,  for  the  said  road, 
that  in  many  of  the  most  important  parts  of  the  said  route,  the  said 
defendants  have  located  their  said  road  by  their  said  surveys,  on  the 
only  ground  where  it  is  at  all  practicable  to  conduct  the  said  canal, 
on  the  Maryland  side  of  the  river,  on  which  side  all  the  way  from 
Cumberland  to  tide  water,  they  knew  the  said  canal  was  intended  to 
be  constructed,  and  had  been  so  defined  in  the  said  official  surveys 
and  estimates,  all  of  which  assumed  that  route  as  their  basis;  that 
inasmuch  as  the  choice  of  routes  for  the  canal  is  necessarily  limited 
by  water  levels  and  other  circumstances,  and  as  the  route  for  the 
said  road  admits  of  an  infinitely  larger  scope  of  choice,  if  it  be  not 
in  the  nature  of  things  indefinite,  these  complainants  have  good  rea¬ 
son  to  conclude,  think  and  believe,  and  indeed,  are  credibly  informed 
from  other  sources,  and  do  verily  think  and  believe,  that  the  site  and 
route  so  chosen,  and  surveyed  for  the  said  road,  have  been  so  chosen 
with  a  preconcerted  design  and  deliberate  intent  to  forestall  and 
oust  these  complainants  of  their  chosen  and  designated  route 
on  the  Maryland  side  of  the  river,  and  that  the  defendants  and 
their  agents  [have  given  out  and  contended  that  these  complainants 
were  entitled  to  no  priority  in  the  location  of  the  site  of  their  ca¬ 
nal  ;  but  that  whichsoever  of  the  said  companies  should  happen 
first  to  get  hold  of  any  piece  of  ground,  by  contract  or  condemna¬ 
tion,  in  the  proposed  route  of  the  canal,  would  be  entitled  to  appro¬ 
priate  it  to  the  exclusive  use  of  such  company  :  that  the  said  defend¬ 
ants,  in  pursuance  and  execution  of  this  unjust  and  unlawful  purpose, 
have  already  within  the  last  three  or  four  days,  just  as  they  ap¬ 
prehended  these  complainants  were  about  to  commence  active  opera¬ 
tions  upon  a  large  scale  for  the  completion  of  the  canal,  obtained  six 
conveyances,  for  several  contigous  tracts  of  land  in  the  neighbour- 


155 


hood  of  Sharpsburgh,  in  the  county  of  Washington,  which  are  filed 
with  the  clerk  of  that  county  to  he  recorded,  and  to  which  these  com¬ 
plainants  refer  :  that  three  of  the  said  conveyances  purport  to  con¬ 
tain  calls  or  boundaries,  which  shew  that  the  lands  so  conveyed  lie 
immediately  along  the  margin  of  the  Potomac,  and  these  complain¬ 
ants  believe,  that  all  six  of  the  tracts  are  contiguous,  and  would 
shut  out  the  said  canal  in  that  quarter,  not  only  from  pursuing  the 
route  so  surveyed  and  laid  down,  for  the  same  as  aforesaid  ;  hut,  from 
any  practicable  route  whatsoever,  by  which  it  could  pass  below  the 
said  tract,  that  the  defendants  and  their  agents  are  actively  employed 
and  now  actually  engaged  in  endeavours  to  forestall  and  take  up  either 
by  contractorcondemnation,  the  w  hole  or  greater  part  of  the  margin  of 
the  said  river  and  its  adjacent  banks  and  low  grounds,  throughout  its 
whole  line,  through  the  counties  of  Alleghany,  Washington  and  Fred¬ 
erick,  and  that  they  are  hastening  on  the  consummation  of  this  pur¬ 
pose,  in  order  to  forestall  and  frustrate  such  active  and  efficient 
measures,  as  it  is  notoriously  expected  and  believed  the  President 
and  Directors  of  the  Chesapeake  and  Ohio  Canal  Company,  will 
immediately  upon  their  election,  in  the  course  of  ten  days  from  this 
time,  adopt,  for  the  appropriation  of  the  ground  designated  by  the 
said  surveys  of  the  Engineers,  under  the  authority  of  Congress,  as 
aforesaid,  for  the  site  and  route  of  the  said  canal,  and  indispensably 
necessary  for  the  completion  of  the  canal  upon  the  plan  suggested  by 
those  surveys,  or  upon  any  practicable  and  convenient  plan ;  and 
these  complainants  are  credibly  informed,  and  do  verily  think  and 
believe,  that  the  existing  survey  and  location  of  the  said  road,  as  far 
below  Cumberland  as  it  has  already  been  made  along  the  whole  line 
of  the  river  Potomac,  through  the  three  counties  aforesaid,  have  been 
made  expressly  and  directly  with  a  view  to  intercept  and  prevent  the 
construction  of  the  said  canal,  on  its  said  designated  and  surveyed 
route;  and  that  if  not  already  done,  the  location  of  the  said  road  will 
be  extended  upon  the  same  plan  of  exclusion  as  low  down  the  river 
as  die  mouth  of  Seneca  in  Montgomery  county.  These  complainants 
know  not  certainly  what  other  contracts  or  agreements  the  defen¬ 
dants  have  made  with  the  proprietors  of  lands  on  the  proposed 
route  of  the  said  road,  besides  the  said  conveyances  already  re¬ 
corded  as  aforesaid,  but  have  good  reason  to  believe,  and  do 
verily  think  and  believe,  from  good  and  credible  information, 
that  they  arc  exerting  themselves  to  the  uttermost,  by  their  agents, 
to  make  other  contracts,  on  a  similar  plan,  and  for  a  similar 
purpose,  with  the  other  proprietors;  and  that  they  have  obtained  se¬ 
veral  warrants  from  Justices  of  the  Peace  in  two,  if  not  all  three  of 
the  said  Counties,  for  summoning  juries  of  inquest,  for  the  condem¬ 
nation  of  such  of  the  said  lands  as  belong  to  persons  unwilling  to 
abet  the  scheme  of  defeating  the  locations  already  made  for  the  be¬ 
nefit  of  these  complainants;  and  that  such  condemnations  are  di¬ 
rected  to  all  the  most  difficult  passes  on  or  near  the  margin  of  the 
river,  which,  being  once  prc-occupied  and  forestalled,  leave  no  other 
practicable  and  convenient,  if  possible  route,  for  the  Canal  ;  and 


156 


that  their  entire  location  of  their  said  lioad,  as  surveyed  and  pro- 
posed  to  be  carried  into  effect  by  means  of  sucli  contracts  and  con¬ 
demnations,  is  calculated  and  intended  to  have  the  effect,  and,  if  per¬ 
mitted,  must  necessarily  have  the  effect,  of  expelling  the  said  Canal 
and  all  its  incidental  works  from  the  route  and  site  so  designated 
and  surveyed  for  the  same,  as  aforesaid,  and  from  any  other  possible 
route  on  the  Maryland  side  of  the  river ;  and,  indeed,  leaving  it  ex¬ 
tremely  doubtful  whether  any  practicable  route  at  all  could  be  found 
on  the  other  side ;  and.  if  practicable  at  all,  making  it  certain  it 
would  be  vastly  and  incalculably  more  expensive  and  inconvenient 
and,  in  all  events,  reduce  these  complainants  to  the  enormous  expense 
and  delay  of  new'  surveys  and  estimates  for  nearly  the  whole  length 
of  the  Eastern  section  of  the  Canal.  And  though  these  complain¬ 
ants  are  w’ell  advised  and  believe  that  the  then  essential  right  to 
maintain  the  present  location  of  their  Canal,  or  to  elect  any  other,  is 
paramount  and  indefeasible,  both  at  law  and  equity ;  and  that  the 
proceedings  of  the  defendants  to  frustrate  that  right,  as  aforesaid, 
would  be  merely  nugatory  and  void ;  yet,  such  is  the  peculiar  nature 
of  the  undertaking  in  hand,  that  no  after  remedy  could  possibly  com¬ 
pensate  these  complainants,  or  the  public,  for  the  delay  and  inconve¬ 
nience  of  a  contested  possession,  if  the  defendants  arc  once  admitted 
into  an  adverse  possession  of  the  entire  line  in  dispute,  and  left  free 
to  hold  it  under  contest,  the  most  precious  and  possibly  the  most  in¬ 
dispensable  time  for  the  completion  of  the  work  may  be  consumed  in 
litigation  ;  till,  at  length,  their  charter  may  be  forfeited  by  Japse  of 
time,  according  to  its  prescribed  limitations  :  that  preventive  and 
summary  justice  is  the  only  justice  that  can  be  administered  in  the 
case ;  and  if  the  defendants  really  desire  to  prosecute  with  effect  their 
^plan  of  a  Rail  Road,  it  may  be  expected  that  they  would  equally  de¬ 
sire  the  question  of  right  (if  such  question  can  be  made  in  the  case) 
to  be  decided  in  the  more  summary  form  of  the  preventive  remedy, 
by  injunction.  To  the  end,  therefore,  that  the  defendants  may  true 
and  perfect  answer  make,  &c.  &c.  particularly  that  they  may  answer 
and  discover  what  surveys  and  locations  of  the  said  Road  they  have 
made  or  caused  to  be  made  ;  how  and  at  what  points  they  interfere 
with  said  designated  and  surveyed  route  of  the  Canal,  or  with  such 
route  of  the  same  as  is  the  most  practicable  and  expedient :  that  alt 
the  said  conveyances,  so  filed  for  record,  as  aforesaid,  and  all  other 
conveyances  and  condemnations  of  land,  if  any,  heretofore  made,  or 
hereafter  to  be  made,  by  the  defendants,  or  by  their  agents,  or  at 
their  request,  in  pursuance  of  such  surveys  and  locations,  may  be 
annulled  and  set  aside  :  that  the  said  defendants,  their  agents  and  at- 
tornies,  and  all  persons  acting  by  their  authority,  or  in  their  behalf, 
may  be  strictly  prohibited  and  enjoined  from  making  any  contractor 
agreement  with,  or  receiving  any  deed  or  conveyance  whatsoever, 
from  any  person  or  persons  whatsoever,  for  any  lands  or  tenements 
whatsoever,  within  the  bounds  already  marked  out  or  surveyed  by 
the  defendants,  for  the  said  Rail  Road,  or  within  the  bounds  of  or  in 
any  manner  interfering  with  the  lands,  tenements,  or  appurtenances, 


157 


designated  by  the  said  surveys  and  reports  of  the  engineers,  under 
the  authority  of  the  Government  of  the  United  States,  for  the  site  or 
route  of  the  said  Chesapeake  and  Ohio  Canal,  or  of  any  of  its  inci¬ 
dental  works  or  appendages,  or  any  where  so  near  the  same,  as  to 
restrict  the  liberty  of  choice  in  the, Chesapeake  and  Ohio  Canal  Com¬ 
pany,  to  appropriate  the  ground  near  or  about  the  said  surveyed 
route  or  site,  and  the  materials  thereon,  to  the  purposes  of  the  said 
Canal,  until  the  said  Chesapeake  and  Ohio  Canal  Company  shall 
have  been  allowed  a  reasonable  time,  in  the  judgment  of  the  Court, 
to  complete  their  actual  surveys  and  definitive  locations  of  their  said 
Canal,  according  to  a  reasonable  and  fair  exercise  of  their  priority 
of  election  and  appropriation :  that,  in  the  mean  time,  all  the  Justi¬ 
ces  of  the  Peace  and  Sheriffs  of  the  Counties  of  Alleghany,  Wash¬ 
ington,  and  Frederick,  be  strictly  prohibited  and  enjoined,  the  one 
from  issuing,  and  the  other  from  executing  any  warrant  for  summon¬ 
ing  any  jury  or  juries  to  assess  damages  for  the  condemnation  of  any 
lands  so  surveyed  or  marked  out  by  the  defendants,  for  the  route  or 
site  of  the  said  Rail  Road  :  and  that  the  complainants  may  have  such 
further  and  other  relief  in  the  premises  as  the  Court  shall  seem  meet. 
May  it  please  you  to  grant  to  these  complainants  the  State  of  Mary¬ 
land’s  writ  and  writs  of  subpoena  and  injunction  to  be  directed  to  the 
said  defendants,  their  agents, &c.,  and  to  the  said  Justices  and  Sheriffs 
&c.  commanding  them,  &c,  &c. 


WILLIAM  PRICE, 
WALTER  JONES, 


j-  Sol.  for  Compt’s. 


June  10  th,  1828. 


Ordered  by  the  Court  this  10th  day  of  June,  1828,  that  injunction 
issue  in  this  case  pursuant  to  the  prayer  of  this  bill. 

TH.  BUCHANAN. 


Walter  Jones,  being  a  member  of  both  the  corporations  who  are 
complainants  in  this  Bill,  makes  oath  that  he  is  credibly  informed, 
and  has  good  reason  to  think  and  believe,  and  does  verily  think  and 
believe  that  the  allegations  contained  in  the  within  bill  are  substan¬ 
tially  true  as  therein  stated. 

Sworn  to  in  open  Court  this  10th  June,  1828. 

Test,  O.  H.  WILLIAMS,  Clerk . 


Washington  Countif ,  ss. 

I  hereby  certify  that  the  aforegoing  is  a  true  and  perfect  copy  of 
the  original  bill  filed  in  Washington  County  Court,  as  a  Court  of 
Equity. 

[seal.]  In  testimony  whereof  I  hereto  subscribe  my  name  and 
affix  the  seal  of  said  Court,  this  1 9th  April,  1830. 

0.  H.  WILLIAMS,  Clerk. 

Wash.  Co.  CL  Md. 


158 


D. 

POTOMAC  COMPANY. 

PROCEEDINGS  OF  THE  POTOMAC  COMPANY. 

Georgetown,  D.  C.  1 6th  May ,  1825. 

At  a  special  meeting  of  the  Stockholders  of  the  Potomac  Compa¬ 
ny,  held  this  day  at  Semmes’  Tavern,  previous  notice  thereof  having 
been  given  conformably  to  law — 

The  following  resolutions  were  unanimously  adopted  : 

That  this  meeting,  having  duly  considered  the  act  of  the  General 
Assembly  of  the  State  of  Virginia,  passed  at  the  December  session 
thereof,  in  the  year  1823,  entitled  “  An  act  incorporating  the  Ches¬ 
apeake  and  Ohio  Canal  Company,  and  the  acts  of  the  General  As¬ 
sembly  of  Maryland,  and  of  the  Congress  of  the  United  States,  con¬ 
firming  the  same,  and  being  willing  and  desirous  that  the  charter 
shall  be  granted  and  confirmed  to  the  said  Chesapeake  and  Ohio  Ca¬ 
nal  Company,  do  hereby  declare  the  full  and  free  assent  of  the  Po¬ 
tomac  Company  to  the  said  act  incorporating  the  said  Chesapeake 
and  Ohio  Canal  Company,  and  to  all  the  provisions  thereof. 

That  the  President  .of  the  Potomac  Company  be,  and  he  is  here¬ 
by,  required  to  deliver  to  the  Executives  of  the  State  of  Virginia, 
Maryland,  and  Pennsylvania,  respectively,  and  to  the  Secretary  of 
the  Treasury  of  the  United  States,  copies  of  the  foregoing  declara¬ 
tion  of  assent  and  corporate  act  of  the  Potomac  Company,  as  requi¬ 
red  by  the  first  section  of  the  act  of  the  General  Assembly  of  Vir¬ 
ginia,  entitled  ‘‘An  act  incorporating  the  Chesapeake  and  Ohio  Ca¬ 
nal  Company.” 

That  the  President  and  Directors  of  the  Potomac  Company  be, 
and  they  arc  hereby,  authorized  and  required,  in  the  name  and  be¬ 
half  of  this  Company,  whenever,  agreeably  to  the  terms  and  provi¬ 
sions  of  the  aforesaid  act  of  Virginia,  entitled  “An  act  incorporating 
the  Chesapeake  and  Ohio  Canal  Company,”  the  subscribers  therein 
mentioned  and  referred  to  shall  have  become  incorporated,  to  make  a 
surrender  of  the  charter  of  the  Potomac  Company,  to  the  said  Ches¬ 
apeake  and  Ohio  Canal  Company,  and  to  convey,  in  due  form  of  law, 
to  the  said  Chesapeake  and  Ohio  Canal  Company,  all  the  property, 
rights,  and  privileges,  owned,  possessed,  and  enjoyed,  by  the  said 
Potomac  Company,  under  their  said  charter;  to  beheld,  used,  and 
occupied,  by  Ihe  said  Chesapeake  and  Ohio  Canal  Company,  in  the 
same  manner  and  to  the  same  effect,  as  the  said  Potomac  Company 
now  hold,  possess,  and  occupy,  the  same  by  law.  And  it  is  hereby 
resolved  and  declared,  that,  upon  the  completion  of  the  said  surrender 
and  conveyance  by  the  said  President  and  Directors,  to  be  evidenced 
by  deed  or  deeds  in  the  name  of  this  Company,  under  the  hands  of 
the  said  President  and  Directors,  or  a  majority  of  them,  and  the  cor¬ 
porate  seal  of  this  Company,  the  said  charter  shall  be,  and  hereby 
is,  effectually  surrendered,  and  all  the  said  property,  rights,  and  pri¬ 
vileges,  shall  be,  and  hereby  arc,  effectually  conveyed  to  the  said 
Chesapeake  and  Ohio  Canal  Company,  according  to  the  tenor  and 


159 


effect,  true  intent  and  meaning,  of  the  said  act  and  acts  so  incorpora¬ 
ting  the  Chesapeake  and  Ohio  Canal  Company,  as  aforesaid. 

In  testimony  whereof,  as  the  corporate  act  of  the  Potomac  Co.  &c. 

Office  of  the  Potomac  Company, 

Georgetown ,  \  6th  May,  1825. 

I  hereby  certify  the  aforegoing  to  be  a  true  and  faithful  extract 
from  the  records  of  the  proceedings  of  the  Potomac  Company. 

ROBERT  BARNARD, 

Treas.  and  Clk.  Poto.  Com . 


Georgetown,  July  10,  1828. 

At  a  special  general  meeting  of  the  Stockholders  of  the  Potomac 
Company,  holden  this  day  at  Semmes’  Tavern,  previous  notice  there¬ 
of  having  been  given  conformably  to  law, 

The  meeting  took  into  consideration  the  acts  amendatory  of  the 
act  incorporating  the  Chesapeake  and  Ohio  Canal  Company,  and  it 
was  decided  to  vote  separately  on  each  of  the  acts  specifically  requir¬ 
ing  the  assent  of  this  Company. 

The  act  of  Maryland,  entitled  “An  act  to  amend  the  ‘act  incor¬ 
porating  the  Chesapeake  and  Ohio  Canal  Company,”  passed  at  the 
December  session,  1 826,  of  the  Legislature  of  said  State,  was  read, 
considered,  and  received  the  unanimous  assent  of  this  meeting. 

The  act  of  Maryland,  entitled  ”  An  act  further  to  amend  the 
act  incorporating  the  Chesapeake  and  Ohio  Canal  Company,”  passed 
at  the  December  session,  1827,  of  the  Legislature  of  said  State,  was 
read,  considered,  and  the  unanimous  assent  of  this  meeting  was  given 
thereto. 

The  following  resolution  was  offered,  and,  after  consideration,  was 
unanimously  adopted. 

Whereas,  since  the  resolution  unanimously  adopted  at  the  general 
meeting  of  the  Potomac  Company,  holden  on  the  16th  May  1825,  in 
relation  to  a  surrender  of  the  rights  of  said  Company  to  the  Chesa¬ 
peake  and  Ohio  Canal  Company,  sundry  acts  have  passed  the  Legis¬ 
latures  of  Virginia  and  Maryland,  and  the  Congress  of  the  United 
States,  modifying  in  sundry  particulars,  for  which  reference  may  be 
had  to  the  said  acts,  the  charter  of  the  said  Chesapeake  and  Ohio 
Canal  Company,  in  some  of  which  acts  it  is  expressly  provided,  that 
they  shall,  prior  to  their  operation,  receive  the  assent  and  approba¬ 
tion  of  this  Company,  and  in  relation  to  others,  the  assent  and  ap¬ 
probation  of  this  Company  may,  in  construction  of  law,  be  deemed 
essential  to  their  validity,  in  whole  or  in  part : 

Pc  it  therefore  unanimously  resolved  by  this  general  meeting ,  That 
the  assent  and  approbation  of  the  Potomac  Company  is  hereby  given 
expressly  to  each  and  all  of  said  acts,  so  far  as  the  same  may  be 
deemed  necessary  to  the  validity  or  future  operation  of  each  and  all 
of  said  acts,  in  as  full  and  perfect  manner  as  if  each  and  all  of  said 
acts  were  herein  specifically  enumerated  and  recited. 

JAMES  KEITII,  Chairman. 


160 


Resolved ,  unanimously,  That  the  President  of  the  Potomac  Compa¬ 
ny  be,  and  he  is  hereby,  required  to  deliver  to  the  Executives  of  the 
States  of  Virginia  and  Maryland,  respectively,  and  to  the  Secretary 
of  the  Treasury  of  the  United  States,  copies,  under  the  seal  of  this 
Company,  of  the  aforegoing  declaration  of  assent  and  corporate  act  of 
the  Potomac  Company,  to  the  acts  therein  referred  to. 

JAMES  KEITH,  Chairman . 


DEED  OF  SURRENDER  OF  THE  POTOMAC  COMPANY. 

Know  all  men  by  these  presents,  That,  whereas  at  a  ge¬ 
neral  meeting  of  the  Stockholders  of  the  Potomac  Company,  duly 
held  at  Semmes’s  Tavern,  in  Georgetown,  in  the  District  of  Colurfi- 
bia,  on  the  sixteenth  day  of  May,  in  the  year  eighteen  hundred  and 
twenty  five,  the  said  Potomac  Company  duly  signified  and  declared 
their  assent  to  the  provisions  of  the  Act  of  the  General  Assembly  of 
Virginia,  passed  at  the  December  session  thereof,  in  the  year  eigh¬ 
teen  hundred  and  twenty-three,  entitled  “An  act  incorporating  the 
Chesapeake  and  Ohio  Canal  Company, 99  and  to  the  acts  of  the  Ge¬ 
neral  Assembly  of  Maryland,  and  of  the  Congress  of  the  United 
States,  confirming  the  same,  by  the  corporate  act  of  the  said  Poto¬ 
mac  Company,  duly  executed,  copies  whereof  have  been  duly  deliver¬ 
ed  to  the  Executives  of  the  States  of  Virginia,  Maryland,  and  Penn¬ 
sylvania,  and  to  the  Secretary  of  the  Treasury  of  the  United  States, 
pursuant  to  the  directions  of  the  said  acts  of  Assembly  and  of  Con¬ 
gress  :  And  whereas,  at  the  same  meeting  of  the  Potomac  Company, 
held  as  aforesaid,  the  President  and  Directors  of  the  said  Company 
were  duly  authorized  and  required  by  the  said  Company  to  make,  in 
the  name  and  behalf  of  the  said  Company,  a  surrender  of  the  charter 
of  the  said  Company  to  the  said  Chesapeake  and  Ohio  Canal  Com¬ 
pany,  and  to  convey,  in  due  form  of  law,  to  the  said  Chesapeake  and 
Ohio  Canal  Company,  all  the  property,  rights,  and  privileges,  own¬ 
ed,  possessed,  and  enjoyed,  by  the  said  Potomac  Company  under  their 
charter,  to  be  held,  used,  and  occupied,  by  the  said  Chesapeake  and 
Ohio  Canal  Company,  in  the  same  manner,  and  to  the  same  effect,  as 
the  said  Potomac  Company  held,  possessed,  and  occupied,  the  same 
by  law;  that  is  to  say,  whenever,  agreeably  to  the  terms  and  provi¬ 
sions  of  the  aforesaid  act  of  Virginia,  the  subscribers  therein  mention¬ 
ed  and  referred  to  should  have  become  incorporated  ;  and  it  was  then 
and  there  by  the  said  Potomac  Company,  by  their  corporate  act  duly 
made  and  recorded,  further  resolved  and  declared,  that,  upon  the 
completion  of  the  said  surrender,  and  conveyance,  by  the  said  Presi- 
sident  and  Directors,  to  be  evidenced  by  deed  or  deeds  in  the  name  of 
the  said  Potomac  Company,  under  the  hands  of  the  said  President  and 
Directors,  or  a  majority  of  them,  and  the  corporate  seal  of  the  said 
Potomac  Company,  the  said  charter  of  the  said  Potomac  Company 
should  be,  and,  by  the  said  last  mentioned  corporate  act  of  the  said 
Company,  become,  effectually  surrendered,  and  all  the  said  property, 
rights,  and  privileges,  effectually  conveyed  to  the  Chesapeake  and 
Ohio  Canal  Company,  according  to  the  tenor  and  effect,  true  intent  and 


161 


meaning,  of  flic  said  act  and  acts  so  incorporating  the  Chesapeake  and 
Ohio  Canal  Company,  as  aforesaid  ;  all  which  will  more  particularly 
and  at  large  appear,  reference  being  had  to  the  record  of  the  proceedings 
and  corporate  acts  of  the  said  Potomac  Company :  And  whereas  the 
subscribers  to  the  capital  stock  of  the  said  Chesapeake  and  Ohio  Ca¬ 
nal  Company  have  become,  and  now  are,  fully  incorporated  as  a  body 
politic  and  corporation  aggregate,  agreeably  to  the  provisions  of  the 
said  act  of  Virginia,  and  by  lorce  of  that  act,  and  of  the  other  acts 
confirming  the  same  as  aforesaid  ;  and  being  so  incorporated,  have 
duly  elected  a  President  and  six  Directors,  as  authorized  and  requir¬ 
ed  by  the  said  act  and  acts  of  Assembly  and  of  Congress,  who  have 
respectively  taken  the  oath  or  affirmation  prescribed  by  the  same, 
and  are  now  duly  organized  as  a  Board  :  Now,  be  it  known,  that 
the  said  Potomac  Company,  by  their  said  President  and  Directors, 
acting  in  the  name  and  behalf  of  the  said  Company,  in  consideration 
of  the  premises,  and  in  the  due  and  faithful  pursuance  and  execution  of 
the  intent  of  the  said  Company,  so  resolved  and  declared  as  aforesaid, 
and  of  the  power  and  authority  by  them  vested  in  the  said  President 
and  Directors  as  aforesaid,  have  given,  granted,  surrendered,  trans¬ 
ferred,  assigned,  and  conveyed,  and  do  hereby,  by  these  presents, 
give,  grant,  surrender,  transfer,  assign,  and  convey,  to  the  said  Che¬ 
sapeake  and  Ohio  Canal  Company,  and  to  their  successors  forever, 
the  charter  of  the  Said  Potomac  Company,  and  all  the  property, 
rights,  and  privileges,  by  them  owned,  possessed,  and  enjoyed,  under 
the  same  :  To  have  and  to  hold  all  and  singular  the  said  property, 
rights,  and  privileges,  unto  the  said  Chesapeake  and  Ohio  Canal 
Company,  and  their  successors  for  ever,  to  be  held,  possessed,  used, 
and  occupied  by  them,  and  to  their  only  use,  benefit,  and  behoof,  in 
the  same  manner,  and  to  the  same  effect,  as  the  said  Potomac  Cou£ 
pany  held,  possessed,  and  occupied,  the  same  by  law,  on  the  said  six¬ 
teenth  day  of  May,  in  the  year  eighteen  hundred  and  twenty-five, 
in  witness  whereof,  John  Mason,  President  of  the  Potomac  Company, 
and  Jonah  Thompson,  John  Laird,  and  Clement  Smith,  Directors  of 
the  said  Company,  being  a  majority  of  the  said  President  and  Direc¬ 
tors,  have,  on  this  fifteenth  day  of  August,  in  the  year  eighteen  hun¬ 
dred  and  twenty-eight,  hereunto  subscribed  their  names,  with  their 
proper  hands,  and  affixed  the  corporate  seal  of  the  said  Company,  in 
due  pursuance  and  execution  of  the  power  and  authority  vested  in  the 
said  President  and  Directors  by  the  said  Company  as  aforesaid. 

J.  MASON, 

JONAH  THOMPSON, 
JOHN.  LAIRD, 

C.  SMITH. 

Sealed  and  delivered  iikthc  presence  of 
W.  CRANCH. 

ROBERT  BARNARD,  Sec .  FoU  Co. 


District  of  Columbia ,  to  wit : 

Be  it  known,  that  on  this  fifteenth  day  of  August,  in  (he  year  of 
our  Lord  eighteen  hundred  and  twenty  eight,  before  the  subscriber, 
19 


162 


William  Crancli,  Chief  Judge  of  the  Circuit  Court  of  the  District  of 
Columbia,  personally  appear  the  above-named  John  Mason,  Presi¬ 
dent,  and  Jonah  Thompson,  John  Laird,  and  Clement  Smith,  Direc¬ 
tors  of  the  said  Company,  being  a  majority  of  the  said  President  and 
Directors  of  the  Potomac  Company,  and  before  me  execute  and  ac¬ 
knowledge  the  aforegoing  deed  or  instrument  of  writing,  as  and  for 
the  act  and  deed  of  the  said  Potomac  Company,  duly  executed  and 
delivered  by  them,  on  the  considerations  and  for  the  purposes  therein 
set  forth,  according  to  the  true  intent,  meaning,  and  purport  of  the 
same. 

W.  CRANCH. 


At  a  meeting  of  the  Stockholders  of  the  Chesapeake  and  Ohio  Canal 
Company ,  holden  the  17 th  September ,  1828,  by  adjournment  from 
the  1  Oth  of  the  same  month ,  it  was 

Resolved  by  the  Stockholders  of  the  Chesapeake  and  Ohio  Canal 
Company  in  General  Meeting ,  That  the  Chesapeake  and  Ohio  Canal 
Company,  do  approve  and  accept  the  surrender  and  transfer  of  the 
charter  of  the  Potomac  Company  to  the  Chesapeake  and  Ohio  Canal 
Company,  made  on  the  15th  day  of  August,  1828,  by  the  President 
and  Directors  of  the  Potomac  Company,  pursuant  to  the  resolutions  of 
the  Stockholders  of  the  said  Company,  and  to  the  terms  of  the  char¬ 
ter  of  the  Chesapeake  and  Ohio  Canal  Company. 


EXTRACTS  FROM  ACTS  OF  THE  STATE  OE  VIRGINIA  IN  RELATION 
•  TO  THE  POTOMAC  COMPANY. 

An  ad  for  opening  and  extending  the  navigation  of  Potomac  river . 

[Passed  October ,  1784.] 

“  1.  Whereas  the  extension  of  the  navigation  of  Potomac  river,  from 
tide  water  to  the  highest  place  practicable  on  the  North  branch, 
will  be  of  great  public  utility,  and  many  persons  are  willing  to 
subscribe  large  sums  of  money  to  effect  so  laudable  and  beneficial 
a  work ;  and  it  is  just  and  proper  that  they,  their  heirs,  and  as¬ 
signs,  should  be  empowered  to  receive  reasonable  tolls  forever,  in 
satisfaction  for  the  money  advanced  by  them  in  carying  the  work 
into  execution,  and  the  risk  they  run  :  and  whereas  it  may  be  ne¬ 
cessary  to  cut  canals,  and  erect  locks  and  other  w'orks  on  both 
sides  of  the  river,  and  the  Legislatures  of  Maryland  and  Virginia, 
impressed  with  the  importance  of  the  object,  are  desirous  of  en¬ 
couraging  so  useful  an  undertaking  :  Therefore,” 
i6  3.  And  be  it  enacted ,  That  in  case  one  half  of  the  said  capital,  or 
a  greater  sum,  shall  be  subscribed  as  aforesaid,  the  said  subscribers, 
and  their  heirs  and  assigns,  from  the  time  of  the  said  first  meeting, 
shall  be,  and  are  hereby  declared  to  be,  incorporated  into  a  company, 
by  the  name  of  the  “  Potomac  Company,”  and  may  sue  and  be  sued 
as  such ;  and  such  of  the  said  subscribers  as  shall  be  present  at  the: 


I 


16S 

said  meeting,  or  a  majority  of  them,  are  hereby  empowered  and  re¬ 
quired  to  elect  a  president  and  four  directors,  for  conducting  the  said 
undertaking,  and  managing  all  the  said  company’s  business  and  con¬ 
cerns,  for  and  during  such  time,  not  exceeding  three  years,  as  the  said 
subscribers,  or  a  majority  of  them,  shall  think  lit.  And  in  counting 
the  votes  of  all  general  meetings  of  the  said  company,  each  member 
shall  be  allowed  one  vote  for  every  share,  as  far  as  ten  shares,  and 
one  vote  for  every  five  shares  above  ten,  by  him  or  her  held  at  the 
time  in  the  said  company  ;  and  any  proprietor,  by  writing  under  his 
or  her  hand,  executed  before  two  witnesses,  may  depute  any  other 
member  or  proprietor  to  vote  and  act  as  proxy  forjiim  or  her,  at  any 
general  meeting.” 

“4.  Jlnd  be  it  enacted ,  That  the  said  president  and  directors  so  elect¬ 
ed,  and  their  successors,  or  a  majority  of  them  assembled,  shall  have 
full  power  and  authority  to  agree  with  any  person  or  persons,  on  be¬ 
half  of  said  company,  to  cut  such  canals,  and  erect  such  locks,  and 
perform  such  other  works  as  they  shall  judge  necessary  for  opening, 
improving,  and  extending  the  navigation  of  the  said  river  above  tide 
water,  to  the  highest  part  of  the  North  Branch,  to  which  navigation 
can  be  extended,  and  carrying  on  the  same,  from  place  to  place,  and 
from  time  to  time,  and  upon  such  terms,  and  in  such  manner  as  they 
shall  think  fit;  and  out  of  the  money  arising  from  the  subscriptions 
and  the  tolls,  and  other  aids  hereinafter  given,  to  pay  for  the  same 
and  to  repair  and  keep  in  order  the  said  canals,  locks,  and  other 
works  necessary  thereto,  and  to  defray  all  incidental  charges  : 

"  9.  Jlnd  be  it  further  enacted ,  That,  for  and  in  consideration  of  the 
expenses  the  said  proprietors  will  be  at,  not  only  in  cutting  the  said 
canals,  erecting  locks,  and  other  works,  for  opening  the  different  falls 
of  the  said  river,  and  in  improving  and  extending  the  navigation 
thereof,  but  in  maintaining  and  keeping  the  same  in  repair,  the  said 
canals  and  works,  with  all  their  profits,  shall  be,  and  the  same  are 
hereby,  vested  in  the  said  proprietors,  their  heirs  and  assigns,  forever, 
as  tenants  in  common,  in  proportion  to  their  respective  shares,  and 
the  same  shall  be  deemed  real  estate,  and  be  forever  exempt  from 
payment  of  any  tax,  imposition,  or  assessment,  whatsoever;  and  it 
shall  and  may  be  lawful  for  the  said  president  and  directors,  at  all 
times  forever  hereafter,  to  demand  and  receive,  at  the  nearest  conve¬ 
nient  place  below  the  mouth  of  the  South  branch,  and  at  or  near 
Bayne’s  Falls,  and  at  or  above  the  Great  Falls  of  the  river  Potomac, 
and  every  of  these  places  separately,  for  all  commodities  transported 
through  either  of  them,  respectively,  tolls,  according  to  the  following 
table  and  rates,  to  wit 

“  And  in  case  of  refusal  or  neglect  to  pay  the  tolls  at  the  time  of 
offering  to  pass  through  any, of  the  said  places,  and  previous  to  the 
vessel’s  passing  through  the  same,  the  collectors  of  the  said  tolls  may 
lawfully  refuse  passage  to  such  vessels  ;  and  if  any  vessel  shall  pass 
without  paying  the  said  toll,  then  the  said  collectors  may  seize  such 
vessel,  wherever  found,  and  sell  the  same  at  auction  for  ready  money, 
which,  so  far  as  is  necessary,  shall  be  applied  towards  paying  the 


164 


said  toll,  and  all  expenses  of  seizure  and  sale,  and  the  balance,  if  any, 
shall  be  paid  to  the  owner,  and  the  person  having  the  direction  of 
such  vessel  shall  be  liable  for  such  toll,  if  the  same  is  not  paid  by 
sale  of  such  vessel,  as  aforesaid. 

44  10.  And  be  it  enacted,  That  the  said  river,  and  the  works  to  be 
erected  thereon  in  virtue  of  this  act,  when  completed,  shall  forever 
thereafter  be  esteemed  and  taken  to  be  navigable  as  a  public  highway, 
free  for  the  transportation  of  all  goods,  commodities,  or  produce, 
whatsoever,  on  payment  of  the  tolls  imposed  by  this  act ;  and  no 
other  toll  or  tax  whatever,  for  the  use  of  the  water  of  the  said  river, 
and  the  works  thereon  erected,  shall,  at  any  time  hereafter,  be  im¬ 
posed,  by  both  or  either  of  the  said  States,  subject,  nevertheless,  to 
such  regulations  as  the  Legislatures  of  the  said  States  may  concur  in, 
to  prevent  the  importation  of  prohibited  goods,  or  to  prevent  fraud 
in  evading  the  payment  of  duties  imposed  in  both  or  either  of  the  said 
States,  on  goods  imported  into  either  of  them.  And  whereas  it  is 
necessary  for  the  making  the  said  canal,  locks,  and  other  works,  that 
a  provision  should  be  made  for  condemning  a  quantity  of  land  for  the 
purpose — 

44  11.  Be  it  enacted ,  That  it  shall  and  may  be  lawful  for  the  said 
president  and  directors,  or  a  majority  of  them,  to  agree  with  the  own¬ 
ers  of  any  land,  through  which  the  said  canal  is  intended  to  pass, 
for  the  purchase  thereof,  and  in  case  of  disagreement,  or  in  case  the 
owner  thereof  shall  be  a  feme-covert,  under  age,  non  compos,  or  out 
of  the  State,  on  application  to  any  two  justices  of  the  county,  in 
which  such  land  shall  lie,  the  said  justices  shall  issue  their  warrant 
under  their  hands,  to  the  sheriff  of  their  county,  to  summon  a  jury  of 
twenty-four  inhabitants  of  his  county,  of  property  and  reputation,  not 
related,  to  the  parties,  nor  in  any  manner  interested,  to  meet  on  the 
land  to  be  valued,  at  a  day  to  be  expressed  in  the  warrant,  nor  less 
than  ten,  nor  more  than  twenty  days  thereafter;  and  the  sheriff,  upon 
receiving  the  said  warrant,  shall  forthwith  summon  the  said  jury,  and 
when  met,  provided  that  not  less  than  twelve  do  appear,  shall  admin¬ 
ister  an  oath  or  affirmation  to  every  juryman  that  shall  appear  : 
4  That  he  will  faithfully,  justly,  and  impartially,  value  the  land, 
(not  exceeding  in  any  case  the  width  of  one  hundred  and  forty  feet) 
and  all  damages  the  owner  thereof  shall  sustain  by  the  cutting  the 
canal  through  such  land,  according  to  the  best  of  bis  skill  and  judg¬ 
ment  ;  and  that  in  such  valuation,  he  will  not  spare  any  person 
through  favor  on  affection,  nor  any  person  grieve  through  malice, 
hatred,  or  ill  will.’  And  the  inquisition  thereupon  taken,  shall  be 
signed  by  the  sheriff,  and  some  twelve  or  more  of  the  jury,  and  re¬ 
turned  by  the  sheriff  to  the  clerk  of  his  county,  to  be  by  him  record¬ 
ed  :  And  upon  every  such  valuation,  the  jury  is  hereby  directed  to 
describe  and  ascertain  the  bounds  of  tbe  land  by  them  valued,  and 
their  valuation  shall  be  conclusive  on  all  persons,  and  shall  be  paid 
by  the  said  president  and  directors,  to  the  owner  of  the  land,  or  his 
legal  representative;  and  on  payment  thereof,  the  said  company 
shall  be  seized  in  fee  of  such  land,  as  if  conveyed  by  the  owner  to 


165 


them,  and  their  successors,  by  legal  conveyance  :  Provided ,  never¬ 
theless,  That  if  any  farther  damage  shall  arise  to  any  proprietor  of 
land,  in  consequence  of  opening  such  canal,  or  in  erecting  such  works, 
than  had  been  before  considered  and  valued,  it  shall  and  may  be  law¬ 
ful  for  such  proprietor,  as  often  as  any  such  new  damage  shall  hap¬ 
pen,  by  application  to,  and  a  warrant  from,  any  two  justices  of  the 
county  where  the  lands  lie,  to  have  such  further  damage  valued  by  a 
jury  in  like  manner,  and  to  receive  and  recover  the  same  of  the  said 
president  and  directors.  But  nothing  herein  shall  be  taken  or  con¬ 
strued  to  entitle  the  proprietor  of  any  such  land  to  recover  compensa¬ 
tion  for  any  damages  which  may  happen  to  any  mills,  forges,  or  other 
waterworks  or  improvements,  which  shall  be  begun  or  erected  by 
such  proprietor,  after  such  first  valuation,  unless  the  said  damage  is 
wilfully  or  maliciously  done  by  the  said  president  and  directors,  or 
some  person  by  their  authority. 

“  12.  And  be  it  enacted,  That  the  said  president  and  directors,  or 
a  majority  of  them,  are  hereby  authorized  to  agree  with  the  propri¬ 
etors  for  the  purchase  of  a  quantity  of  land,  not  exceeding  one  acre, 
at  or  near  each  of  the  said  places  of  receipt  of  tolls  aforesaid,  for  the 
purpose  of  erecting  necessary  buildings ;  and  in  case  of  disagree 
ment,  or  any  of  the  disabilities  aforesaid,  or  the  proprietor  being  out 
of  the  State,  then  such  land  may  be  valued,  condemned,  and  paid 
for,  as  aforesaid,  for  the  purpose  aforesaid  ;  and  the  said  company 
shall,  upon  payment  of  the  valuation  of  the  said  land,  be  seized  there¬ 
of,  in  fee  simple,  as  aforesaid  :  And  whereas  some  of  the  places 
through  which  it  may  be  necessary  to  conduct  the  said  canals  may  be 
convenient  for  erecting  mills,  forges,  and  other  water  works,  and  the 
persons  possessors  of  such  situation  may  design  to  improve  the  same, 
and  it  is  the  intention  of  this  act  not  to  interfere  with  private  property, 
[)ut  for  the  purpose  of  improving  and  perfecting  the  said  navigation — 

“  IS.  Be  it  enacted ,  That  the  water,  or  any  part  thereof,  conveyed 
through  any  canal  or  cut  made  by  the  said  company,  shall  not  be  used 
for  any  purpose  but  navigation,  unless  the  consent  of  the  proprietors 
of  the  land  through  which  the  same  shall  be  led,  be  first  had  ;  and 
the  said  president  and  directors,  or  a  majority  of  them,  are  hereby 
empowered  and  directed,  if  it  can  be  conveniently  done,  to  answer 
both  the  purposes  of  navigation  and  water  works  aforesaid,  to  enter 
into  reasonable  agreements  with  the  proprietors  of  such  situation,  con¬ 
cerning  the  just  proportion  of  the  expenses  of  making  large  canals  or 
cuts  capable  of  carrying  such  quantities  of  w  ater  as  may  be  sufficient 
for  the  purposes  of  navigation,  and  also  for  any  such  water  works  as 
aforesaid. 

“  And  whereas  it  hath  been  represented  to  this,  General  Assembly, 
that  sundry  persons  are  willing  and  desirous,  on  account  of  the  great 
public  advantages  and  improvement  their  estates  may  receive  thereby, 
to  promote  and  contribute  towards  so  useful  an  undertaking,  and  to 
subscribe  sums  of  money  to  be  paid  on  condition  the  said  works  are 
really  completed  and  carried  into  execution,  but  do  not  care  to  run  any 
risk,  or  desire  to  have  any  property  therein — 


166 


a  15.  Be  it  therefore  enacted ,  That  the  said  president  and  directors 
shall  be,  and  are  hereby  empowered  to  receive  and  take  in  subscrip¬ 
tions,  upon  the  said  condition,  and  upon  the  said  works  being  com¬ 
pleted  and  carried  into  execution,  according  to  the  true  intent  and 
meaning  of  this  act,  that  it  shall  and  may  be  lawful  for  the  said  pre¬ 
sident  and  directors,  or  a  majority  of  them,  in  case  of  refusal  or  ne¬ 
glect  of  payment,  in  the  name  of  the  company  as  aforesaid,  to  sue  for 
and  recover  of  the  said  subscribers,  their  heirs,  executors  or  admi¬ 
nistrators,  the  sums  by  them  respectively  subscribed,  by  action  of 
debt,  or  upon  the  case,  in  any  court  of  record  within  this  State. 

a  16.  And  be  it  enacted ,  That,  if  the  said  capital,  and  other  aids 
already  granted  by  this  act,  shall  prove  insufficient,  it  shall  and  may 
he  lawful  for  the  said  company,  from  time  to  time,  to  increase  the 
said  capital  by  the  addition  of  so  many  more  whole  shares,  as  shall 
be  judged  necessary  by  the  said  proprietors,  or  a  majority  of  them, 
holding  at  least  three  hundred  shares,  present  at  any  general  meeting 
of  the  said  company. 

a  17.  And  it  is  hereby  declared  and  enacted ,  That  the  tolls  herein¬ 
before  allowed,  to  be  demanded  and  received  at  the  nearest  conveni¬ 
ent  place  below  the  mouth  of  the  South  Branch,  are  granted,  and  shall 
be  paid,  on  condition  only,  That  the  said  Potomac  Company  shall 
make  the  river  well  capable  of  being  navigated  in  dry  seasons,  by 
vessels  drawing  one  foot  water  from  the  place  on  the  North  Branch, 
at  which  a  road  shall  set  off  to  the  Cheat  river,  agreeably  to  the  de¬ 
termination  of  the  Assemblies  of  Virginia  and  Maryland,  to  and 
through  the  place  which  may  be  fixed  on,  below  the  mouth  of  the 
South  Branch,1  for  receipt  of  the  tolls  aforesaid  ;  but  if  the  said  river 
is  only  made  navigable  as  aforesaid,  from  Fort  Cumberland,  to  and 
through  the  said  place  below  the  mouth  of  the  South  Branch,  then  only 
two-thirds  of  the  said  tolls  shall  be  there  received.  That  the  tolls 
hereinbefore  allowed,  to  be  demanded  and  received  at  or  near 
Payne’s  Falls,  are  granted  and  shall  be  payable  on  condition  only, 
that  the  said  Potomac  Company  shall  make  the  river  well  capable  of 
being  navigated  in  dry  seasons,  by  vessels  drawing  one  foot  water, 
from  the  said  place  of  collection,  near  the  mouth  of  the  South  Branch 
to  and  through  Payne’s  Falls  as  aforesaid.  That  the  tolls  hereinbe¬ 
fore  allowed  to  be  demanded  and  received  at  the  Great  Falls,  '  are 
granted  and  shall  be  payable  on  condition  only,  that  the  said  Potomac 
Company  shall  make  the  river  well  capable  of  being  navigated  in  dry 
seasons,  from  Payne’s  Falls  to  the  Great  Falls,  by  vessels  drawing 
one  foot  water,  and  from  the  Great  Falls  to  tid°  w'ater,  and  shall,  at  ' 
or  near  the  Great  Falls,  make  a  cut  or  canal,  twenty-five  feet  wide, 
and  four  feet  deep,  with  sufficient  locks,  if  necessary,  each  of  eighty 
feet  in  length,  sixteen  feet  in  breadth,  and  capable  of  conveying  ves¬ 
sels  or  rafts  drawing  four  feet  water  at  the  least,  and  shall  make,  at 
or  near  the  Little  Falls,  such  canal  and  locks,  if  necessary,  as  will 
he  sufficient  and  proper  to  let  vessels  and  rafts  aforesaid,  into  tide 
water,  or  render  the  said  river  navigable  in  the  natural  course. 


i 


167 


“  18.  And  it  is  herebij  provided  and  enacted ,  That,  in  case  the  said 
company  shall  not  begin  the  said  work  within  one  year  after  the  com¬ 
pany  shall  be  formed,  or  if  the  navigation  shall  not  be  made  and  im¬ 
proved  between  the  Great  Falls  and  Fort  Cumberland,  in  the  man¬ 
ner  hereinbefore  mentioned,  within  three  years  after  the  said  compa¬ 
ny  shall  be  formed,  that  then  the  said  company  shall  not  be  entitled 
to  any  benefit,  privilege,  or  advantage,  under  this  act  :  And  in  case 
the  said  company  shall  not  complete  the  navigation  through  and  from 
the  Great  Falls  to  tide  water  as  aforesaid,  within  ten  years  after  the 
said  company  shall  be  formed,  then  shall  all  interest  of  the  said  com¬ 
pany  and  all  preference  in  their  favor,  as  to  the  navigation  and  tolls, 
at,  through,  and  from,  the  Great  Falls  to  tide  water,  be  forfeited,  and 
cease. 

“19.  And  be  it  enacted,  That  all  commodities  of  the  produce  of 
either  of  the  said  States,  or  of  the  Western  country,  which  may  be 
carried  or  transported  through  the  said  locks,  canals,  and  river,  may 
be  landed,  sold,  or  otherwise  disposed  of,  free  from  any  other  duties, 
impositions,  regulations,  or  restrictions,  of  any  kind,  than  the  like 
commodities  of  the  produce  of  the  State  in  which  the  same  may  hap¬ 
pen  to  be  so  landed,  sold,  shipped,  or  (Jisposed  of. 

“21.  And  be  it  further  enacted ,  That  so  much  of  every  act  and  acts 
within  the  purview  of  this  act,  shall  be,  and  the  same  is  hereby,  re¬ 
pealed.  99 


An  act  to  amend  an  act  entitled  “An  act  for  opening  and  extending 
the  navigation  of  the  Potomac  river — [ Passed  Dec .  16,  1790.] 

Whereas  it  has  been  represented  to  the  present  General  Assembly,  by 
the  President  and  Directors  of  the  Potomac  Company,  that  the 
time  allowed  by  law  for  making  and  improving  the  navigation  of 
the  Potomac  River,  between  the  Great  Falls  and  Fort  Cumber¬ 
land,  in  the  manner  therein  mentioned,  is  found  not  sufficient  to 
perform  the  work — 

Sec.  2.  Be  it  therefore  enacted ,  That,  the  further  time  of  three 
years  shall  be  allowed  the  said  Company  for  making  and  improving 
•the  navigation  of  the  said  river  above  the  Great  Falls. 

Sec.  3,  And  be  it  further  enacted ,  That  none  of  the  shares  not 
already  subscribed  for,  be  hereafter  taken  up,  but  on  first  paying  the 
amount  of  the  previous  calls,  and  interest  from  the  time  the  calls 
ought  to  have  been  complied  with,  and  that  delinquent  subscribers 
shall  pay  inquest  from  the  time  the  money  called  for  ought  to  have 
been  paid,  with  the  actual  expense  of  notice,  and  that  the  same  shall 
be  recovered  w  ith,  and  in  like  manner,  as  the  principal. 

Sec.  4.  And  be  it  further  enacted,  That  the  place  of  collection  of 
tolls  shall  be  at  or  near  Hook’s  Falls,  instead  of  being  at  or  near 
Payne’s,  and  that  one-fourth  of  the  tolls  made  payable  at  Payne’s 


168 


Falls,  shall  henceforth  be  demandable  and  received  at  Hook’s  Falls, 
and  one-fourth  of  the  tolls  payable  at  the  Great  Falls,  shall  be  de¬ 
mandable  and  received  at  the  Great  Falls,  and  also  on  goods  and 
produce  landed  at  or  near  Watts9  branch. 

Sec.  5.  And  be  it  further  enacted,  That  the  president  and  directors 
of  the  said  Company  are  hereby  empowered  to  apply  so  much  of  the 
capital  subscribed,  and  tolls  as  may  arise,  as  they  shall  judge  neces¬ 
sary  towards  opening,  improving,  and  extending  navigation  on  the 
branches  of  Potomac  river,  above  Seneca. 

Sec.  6.  And  be  it  further  enacted ,  That  it  shall  and  may  be  law¬ 
ful  for  persons,  not  citizens  of  this  Commonwealth,  to  purchase  and 
hold  the  non-subscribed  shares  of  the  said  Potomac  Company  :  Pro¬ 
vided,  That  the  persons  so  purchasing  shall  not  thereby  become  citi¬ 
zens  of  this  Commonwealth. 


An  act  to  amend  the  act ,  entitled  An  act  to  amend  the  act  entitled  “  An, 
act  for  opening  and  extending  the  navigation  of  Potomac  river." 
[. Passed  November  21,  179,1.] 

Whereas,  on  application  of  the  President  and  Directors  of  the  Poto¬ 
mac  Company,  an  act  was  passed  during  the  last  session  of  the 
General  Assembly,  which,  among  other  things,  did  grant  to  the 
said  Company  the  right  to  open,  extend,  and  improve  the  naviga¬ 
tion  of  the  branches  of  the  Potomac  river,  above  Seneca,  which 
grant  was  made  from  an  expectation  that  the  said  Company  would 
forthwith  proceed  in  improving  the  navigation  of  the  said  branches  : 

1.  Be  it  therefore  enacted  by  the  General  Assembly ,  That  the  said 
grant  shall  be  forfeited  unless  the  Company  aforesaid  proceed,  within 
twelve  months  from  the  date  hereof,  in  the  opening  and  improving 
the  navigation  of  the  said  branches. 

2.  And  be  it  further  enacted,  That  it  shall  and  may  be  lawful  for  per¬ 
sons  not  citizens  of  this  Commonwealth  to  purchase  and  hold  the 
subscribed,  as  well  as  the  non-subscribed  shares  of  the  Potomac  Com¬ 
pany,  provided,  that  the  persons  so  purchasing,  shall  not  thereby  be¬ 
come  citizens  of  this  Commonwealth. 


General  Assembly,  begun  and  held  at  the  Capitol,  in  the  City  of  Rich¬ 
mond,  on  Monday,  the  twenty-first  day  of  October ,  in  the  year  of  our 
Lord  one  thousand  seven  hundred  and  ninety-three.— [Passed  Novem¬ 
ber  23,  1793.]  *  .  • 

1.  Be  it  enacted,  That  so  much  of  the  act  of  General  Assembly, 
passed  in  the  year  1787,  entitled  “  An  act  giving  a  more  speedy  rem¬ 
edy  against  delinquent  subscribers  to  the  Potomac  and  James  River 
Companies,”  as  relates  to  the  Potomac  Company,  shall  be,  and  is 
hereby  repealed  ;  and  so  much  of  the  act  of  the  General  Assembly, 


entitled  “An  act  for  opening  and  extending, the  navigation  of  Po¬ 
tomac  river, ”  as  directed  the  sale  of  the  shares  of  delinquent  subscri¬ 
bers,  shall  be  and  remain  in  full  force  and  effect. 

2.  And  be  it  further  enacted ,  That  the  time  for  completing  the  navi¬ 
gation  of  Potomac  river,  between  the  Great  Falls  and  the  head,  shall 
be,  and  is  hereby,  extended  until  the  first  day  of  January,  1795,  and 
that  no  privilege  or  advantage  granted  by  law  shall  be  forfeited  or 
lost,  in  case  the  navigation  aforesaid  shall  be  finished  within  the  time 
hereby  limited,  any  thing  in  any  act  to  the  contrary  thereof  notwith¬ 
standing. 

3.  And  be  it  further  enacted ,  That  the  several  tolls  made  payable 
by  the  act  of  General  Assembly,  entitled  “  An  act  for  opening  and 
extending  the  navigation  of  Potomac  river  at  Payne’s  Falls,”  shall, 
instead  thereof,  be  payable  at  Hook’s  Falls*  and  the  tolls  by  said  act 
made  payable  at  the  Great  Falls,  shall  be  payable  at  the  Great  Falls, 
and  at  Watts’  branch,  in  such  proportion  as  shall  be  directed  by  the 
President  and  Directors  of  the  Potomac  Company :  and  that  the 
tolls  by  the  said  act  made  payable  at  the  mouth  of  the  South  Branch, 
shall  be,  and  are  hereby,,  made  payable  at  some  convenient  place  be¬ 
tween  the  mouths  of  Great  Cacapeton  and  Conococheague,  to  be  ap¬ 
pointed  by  the  President  and  Directors  of  the  Potomac  Company, 
any  thing  in  any  former  act  or  acts  of  Assembly  to  the  contrary  not¬ 
withstanding  :  Provided  alwaysf  that  this  act  and  every  part  thereof 
shall  be,  and  the  same  is  hereby,  suspended,  until  the  Legislature  of 
the  State  of  Maryland  shall  pass  a  law  or  laws  to  the  like  effect. 


[By  act  of  Virginia,  concerning  the  General  Court  of  the  State, 
jurisdiction  is  granted  to  the  General  Court  to  hear  and  determine 
motions  against  delinquent  subscribers  to  Potomac  Company.  18th 
Dec.  1819,  Act  of  Virginia  relating  to  the  powers  of  the  Superior 
Court  of  the  States  grants  to  Circuit  Courts  jurisdiction  to  hear  and 
determine  motions  against  sheriffs  and  other  law  officers,  for  refusing 
to  pay  moneys  due  to  them  and  to  the  Potomac  Company  and  others.] 


An  act  authorizing  the  Potomac  Company  to  open  the  Shenandoah 
River . — [Passed  January  13,  1802.] 

Whereas  the  extension  of  the  navigation  of  the  river  Shenandoah  will 
be  of  public  utility,  for  which  purpose  it  may  be  necessary  to  cut 
canals  and  erect  locks  and  other  works  on  both  sides  of  the  river, 
and  the  Legislature  of  Virginia  be  impressed  with  the  importance 
of  the  object,  and  desirous  of  encouraging  so  useful  an  undertaking  ; 
and  whereas  it  is  in  proof  before  the  Legislature  that  the  endeavors 
to  form  a  company  for  that  purpose,  under  the  act  of  Legislature, 
passed  January  23,  1798,  have  been  ineffectual,  and  the  Potomac 
20 


no 


Company  having,  by  their  Board  of  Directors,  communicated  to 
the  present  Legislature  their  willingness  to  undertake  that  impor¬ 
tant  work- — 

2.  “  Be  it  therefore  enacted  by  the  General  Assembly,  That,  for  and  in 
consideration  of  the  expenses  the  said  company  will  be  at,  not  only  in 
cutting  the  said  canals,  erecting  locks,  and  other  works,  for  opening 
the  falls  of  the  said  river,  and  the  north  and  south  branches,  to  wit  : 
The  North  Branch,  up  to  the  mouth  of  Smith’s  Creek,  in  the  County 
of  Shenandoah,  and  the  South  Branch  to  a  place  called  Carthraes,  in 
the  County  of  Rockingham,  where  the  said  South  Branch  forks,  and 
in  improving  and  extending  the  navigation  thereof — but  in  maintain¬ 
ing  and  keeping  the  same  in  repair,  the  said  canals  and  works,  with 
all  their  profits  shall  be,  and  the  same  are  hereby,  vested  in  the  Stock¬ 
holders  of  the  Potomac  Company,  their  heirs  and  assigns,  forever, 
as  tenants  in  common,  in  proportion  to  the  shares  held  by  them  re¬ 
spectively,  and  the  same  shall  be  deemed  real  estate,  and  be  forever 
exempt  from  the  payment  of  any  tax,  imposition,  or  assessment  what¬ 
ever  ;  and  the  said  president  and  directors  shall  be  entitled  to  de¬ 
mand  and  receive,  at  such  place  or  places  on  the  said  river  as  they 
shall  think  proper,  the  same  tolls  which  were  allowed  the  Shenandoah 
Company  under  the  act  of  General  Assembly,  passed  the  23d  day  of 
January,  1798,  entiled  “  An  act  for  opening  and  extending  the  navi¬ 
gation  of  the  Shenandoah  river,  but  which  tolls  shall  he  subject  to  a 
reasonable  deduction  by  the  Legislature,  after  the  end  of  seven  years 
from  the  completion  of  the  said  navigation  ;  and  they  shall  demand 
the  said  tolls  immediately  after  they  have  rendered  the  mouth  of  the 
said  river  Shenandoah  navigable,  which  tolls  may  be  discharged  in 
dollars  and  cents  and  other  coin  made  current  by  law. 

“  4.  And  be  it  further  enacted ,  That  the  said  river,  and  the  works  to 
be  erected  thereon  in  virtue  of  this  act,  when  completed,  shall  forever 
thereafter  be  esteemed  and  taken'to  be  navigable,  as  a  public  highway, 
free  for  the  transportation  of  all  goods,  commodities,  or  produce, 
whatsoever,  on  payment  of  the  tolls  imposed  by  this  act ;  and  no 
other  toll  or  tax  whatever,  for  the  use  of  the  water  of  the  said  river, 
and  the  works  thereon  erected,  shall,  at  any  time  hereafter,  be  im¬ 
posed  by  the  General  Assembly  of  Virginia. 

“  5.  And  whereas  it  is  necessary  for  making  the  said  canals,  locks, 
and  other  works,  that  a  provision  should  be  made  for  condemning 
cpiantity  of  land  for  the  purpose  :  Be  it  enacted ,  That  &c. 

“  11.  And  be  it  further  enacted ,  That  if  the  said  president  and  di¬ 
rectors  shall  deem  it  necessary  to  increase  the  capital  of  the  said 
company,  for  the  purpose  of  completing  and  carrying  on  the  said  9 
works,  it  shall  and  may  be  lawful  for  them  to  open  books  and  receive 
subscriptions  therein  of  one  hundred  shares  in  addition  to  the  shares 
now  held  by  the  present  Potomac  Company ;  and  such  subscribers, 
on  the  payment  of  the  sum  of  one  hundred  and  forty-five  pounds  ster¬ 
ling  each,  to  the  said  president  and  directors  or  their  treasurer,  in 
such  proportion  and  times  as  they,  the  said  president  and  directors, 


471 


/ 


shall  appoint,  shall  henceforth  be  deemed  and  considered  as  members 
of  the  said  company,  and  entitled  to  receive  their  full  dividends  and 
proprortions  of  the  tolls  herein  mentioned. 

“  12.  This  act  shall  commence  and  be  in  force  from  and  after  the 
passing  thereof.  ” 


Jin  act  to  repeal  a  part  of  the  act,  entitled  “  Jin  act  authorizing  the  Po¬ 
tomac  Company  to  open  the  Shenandoah  river — [Passed  January  4, 

1803.] 

1.  Be  it  enacted  by  the  General  Jlssembly,  That  so  much  of  the  act 
passed  at  the  last  session,  entitled  «  An  act  authorizing  the  Potomac 
Company  to  open  the  Shenandoah  Riv£r,”  as  reserves  to  the  Legisla¬ 
ture  the  right  of  reducing,  after  the  expiration  of  seven  years  from 
the  completion  of  the  navigation  of  said  river,  the  tolls  by  the  said 
act  allowed,  shall  be,  and  is  hereby,  repealed. 

2.  And  the  tolls  hereby  granted  by  the  said  act  are  hereby  secured 
to  the  Stockholders  of  the  Potomac  Company,  their  heirs  and  assigns, 
forever,  in  the  same  manner  that  the  tolls  on  the  Potomac  have  been 
heretofore  secured  by  the  Legislatures  of  Virginia  and  Maryland. 

3.  Jind  be  it  further  enacted ,  That  the  term  of  five  years,  allowed 
by  the  before  recited  act,  for  completing  the  navigation  of  the  Shenan¬ 
doah  river,  shall  be  computed  from  the  time  of  passing  this  act 

4.  This  act  shall  be  in  force  from  the  passing  thereof. 


Jin  act  concerning  the  Potomac  Company. — [Passed  January,  27,  1803.] 

Whereas  it  appears,  by  a  memorial  from  the  Directors  of  the  Poto¬ 
mac  Company,  that  the  locks  erected  at  the  Great  Falls  are  only 
twelve  feet  in  breadth,  instead  of  fourteen  feet  as  the  law  directs  : 

2.  Be  it  enacted  and  declared,  That  the  said  locks  which  have  been 
already  erected  and  completed,  shall  be  deemed  and  taken  as  sufficient 
and  effectual,  as  if  the  same  had  been  constructed  and  erected  of  the 
breadth  of  fourteen  feet  :  Provided  always,  That  nothing  herein  con¬ 
tained  shall  be  construed  to  authorize  the  erecting  in  future  any  lock 
or  locks,  for  the  improvement  of  the  navigation  of  the  said  river,  of 
any  dimensions  less  than  eighty  feet  in  length  and  twelve  feet  in 
breadth  :  Provided,  also,  That  every  lock  which  shall  hereafter  be 
repaired  or  erected,  shall  be  repaired  or  erected  of  stone,  or  such  ma¬ 
terials  as  a  general  meeting  of  the  proprietors  shall  deem  most  con¬ 
ducive  to  the  public  interest  and  convenience. 

3.  And,  whereas,  it  appears,  by  the  said  memorial,  that  doubts 
have  arisen  relative  to  the  true  construction  of  the  seventeenth 
section  of  the  act  entitled  “  An  act  for  opening  and  extending 
the  navigation  of  the  Potomac  river,”  in  the  specification  therein 
mentioned  and  expressed  of  the  seasons  in  which  the  said  river  shall 


be  made  well  capable  of  being  navigated :  Be  it  therefore  enacted  and 
declared ,  That,  by  the  words  “  dry  seasons,”  as  used  in  the  said 
section,  4were  and  are  to  be  intended  and  understood,  all  seasons,  so 
far  as  relates  to  the  navigation  of  the  said  river  from  Fort  Cumber¬ 
land  to  tide  water. 

4.  And  be  it  enacted,  That  Tobias  Lear,  Stevens  Thompson  Mason, 
Lawrence  A  Washington,  Hugh  Holmes,  Nicholas  Fitzhugh,  Os¬ 
borne  Sprigg,  and  Edward  McCarty,  shall  and  are  hereby  appointed 
Commissioners  to  explore  and  review  the  said  river  at  any  time  be¬ 
fore  the  first  day  of  November,  when  the  water  is  in  such  a  state  as  to 
enable  them  to  judge  most  accurately  of  the  work  which  has  been 
done  by  said  Company,  and  they  shall  report  to  the  next  General 
Assembly  the  manner  in  which  the  said  work  is  done,  the  depth  of 
water  in  the  shallowest  places  where  boats  generally  pass,  and  all 
other  necessary  information  that  can  be  procured  relative  to  the  sub¬ 
ject,  together  with  their  own  opinions  thereon. 

5.  And  be  it  f  urther  enacted ,  That  the  said  Potomac  Company  are 
hereby  authorized  and  empowered  to  employ  from  the  State  of  Mary¬ 
land,  slaves,  for  the  purpose  of  further  improving  the  navigation  of 
the  said  river,  and  that  the  slaves  so  employed  shall  not  be  entitled  to 
their  freedom  in  consequence  of  such  removal  from  Maryland,  any 
law  to  the  contrary  notwithstanding. 

6.  Be  it  enacted ,  That  the  further  time  of  three  years,  to  be  com¬ 
puted  from  the  expiration  of  the  term  already  given,  shall  be,  and  is 
hereby,  allowed  the  Potomac  Company,  to  complete  the  navigation  of 
the  said  river. 

7.  Provided ,  That  a  majority  of  the  said  Commissioners  shall  be 
sufficient  to  execute  the  duties  assigned  them  by  this  act,  who  shall  be 
paid  for  their  services  by  the  Potomac  Company. 

8.  This  act  shall  commence  and  be  in  force  from  and  after  the  pass¬ 
ing  thereof. 


An  act  concerning  the  Potomac  Company. — [ Passed  5th  January,  1808.] 

Be  it  enacted  by  the  General  Assembly ,  That  the  President  and  Di¬ 
rectors  of  the  Potomac  Company  shali  be,  and  they  are  hereby,  al¬ 
lowed  the  further  term  of  three  years,  from  the  expiration  of  the  time 
heretofore  allowed  by  law,  to  complete  the  navigation  of  the  Shenan¬ 
doah  river. 

2.  This  act  shall  be  in  force  from  the  passing  thereof. 


An  act  concerning  the  Potomac  Company  .—[Passed  11  th  January y  1811.] 

Be  it  enacted  by  the  General  Assembly ,  That  the  further  term  of 
three  years,  to  be  computed  from  the  expiration  of  the  term  heretofore 


173 


granted,  shall  be,  arid  the  same  is  hereby,  allowed  to  the  Potomac 
Company,  to  complete  the  navigation  of  the  Potomac  and  Shenandoah 
rivers. 

2.  This  act  shall  be  in  force  from  the  passing  thereof. 


AN  ACT  OF  THE  STATE  OF  VIRGINIA. 

Extracts  from  “An  act  incorporating  a  New  Company ,  to  open  and 
extend  the  navigation  of  Shenandoah  River  and  its  Branches ,  and 
for  other  purposes* — [Passed  February  3,  1814.] 

“  Whereas  the  extension  of  the  navigation  of  Shenandoah  river  will  be 
of  public  utility,  and  the  Potomac  Company,  which  has  failed  to 
complete  the  said  navigation,  within  the  time  limited  by  their  charter 
has,  on  certain  conditions,  agreed  to  relinquish  any  further  claim 
thereto  :  And  whereas  it  may  be  necessary  to  cut  canals  and  erect 
locks  and  other  works  on  both  sides  of  the  river  ;  and  the  General 
Assembly,  impressed  with  the  importance  of  the  object,  are  desir¬ 
ous  of  encouraging  so  useful  an  undertaking 

“  1 9.  And  be  it  further  enacted ,  That  the  President  and  Directors  of 
the  said  company  shall  pay  and  reimburse  to  the  Potomac  Company 
the  value  of  the  locks  and  other  works  done  and  erected  in  the  She¬ 
nandoah  river  and  its  branches,  by  the  said  Company ;  to  be  ascer¬ 
tained  and  fixed  by  two  or  more  reputable  and  disinterested  persons, 
to  be  appointed  by  the  Directors  of  the  respective  Companies  ;  which 
valuation  shall  be  paid  in  ten  equal  annual  instalments,  with  legal  in¬ 
terest,  commencing  from  the  first  day  of  January,  one  thousand  eight 
hundred  and  fifteen  :  Provided  however,  That,  if  the  tolls  herein  allow¬ 
ed,  shall  not,  in  any  year  amount  to  the  instalment  payable  in  that 
year,  the  balance  shall  not  be  required  to  be  paid  in  that  year,  but  the 
payment  thereof  shall  be  postponed,  until  it  can  be  paid  out  of  subse¬ 
quent  tolls.” 

“21.  And  be  it  further  enacted ,  That  if  the  said  Company  shall  not 
be  formed  on  or  before  the  first  day  of  December  next,  or  the  work 
commenced  within  eighteen  months  from  and  after  the  formation  of 
the  said  Company ;  or  if  the  navigation  shall  not  be  made  and  im¬ 
proved  as  aforesaid,  in  the  manner  hereinbefore  mentioned,  within 
five  years  after  the  said  Company  shall  be  established,  that  then  the 
said  Company  shall  not  be  entitled  to  any  benefit,  privilege,  or  advan¬ 
tage,  under  this  act ;  and  the  right  of  the  Commonwealth  to  extend  to 
the  Potomac  Company,  upon  just  and  equitable  conditions,  a  further 
time  to  open  and  improve  the  navigation  of  said  river,  or  otherwise 
to  dispose  of  the  subject,  in  such- manner  as  to  them  may  seem  wise 
and  just,  shall  thereupon  revert  and  be  complete.” 


V 


174 


AN  ACT  OF  THE  STATE  OF  VIRGINIA. 

6 ‘  An  act  extending  the  time  of  completing  subscriptions ,  and  organizing 
the  New  Shenandoah  Company ,  and  for  other  purposes. — [ Passed  9  th 
November ,  1814.] 

“  Be  it  enacted  by  the  General  Assembly ,  That  the  period  of  six  months 
to  be  computed  from  the  termination  of  the  present  war  between  the 
United  States  and  Great  Britain,  be,  and  the  same  is  hereby  allow¬ 
ed  to  the  New  Shenandoah  Company,  to  complete  the  subscriptions 
and  organize  the  said  company,  instead  of  the  time  prescribed  by  the 
act  incorporating  the  same.  And  all  the  interest  arising  under  any 
contract  or  contracts  between  the  said  Company  and  the  Potomac 
Company  shall  cease  to  accrue,  until  the  said  Shenandoah  Company 
shall  be  organized  and  established. 

“  2.  And  be  it  further  enacted ,  Thatithe  term  of  five  years,  commenc¬ 
ing  from  the  time  the  said  Company  shall  he  organized  and  estab¬ 
lished,  be,  and  is  hereby,  allowed  them,  to  open  and  extend  the  navi¬ 
gation  of  the  Shenandoah  and  its  branches.® 

‘<3.  This  act  shall  be  in  force  from  the  passing  thereof.” 

[By  act  of  the  State  of  Virginia,  2d  January,  1824,  the  New  Shen¬ 
andoah  Company  are  allowed  five  years,  to  be  computed  from  1st  Au¬ 
gust,  1824,' to  comply  with  the  conditions  of  the  act  incorporating 
said  Company.] 

Memorandum  of  an  agreement  made  between  the  President  and  Direc¬ 
tors  of  the  New  Shenandoah  Company,  on  the  one  part,  and  the 
Potomac  Company,  by  Jonah  Thompson,  their  agent,  on  the  other 
part — 

Witnesseth  :  That,  for  and  in  consideration  of  the  conveyance  of 
the  canals  cut,  the  locks  erected  and  all  and  every  of  the  rights,  claims, 
and  interests,  of  the  Potomac  Company,  heretofore  cut,  erected,  and 
claimed,  by  the  said  Potomac  Company,  on  the  Shenandoah  river, 
hereby  conveyed  and  ceded  to  the  New  Shenandoah  Company  by  the 
said  Potomac  Company,  the  said  New  Shenandoah  Company  do  agree 
to  pay  to  the  said  Potomac  Company  the  sum  of  fifteen  thousand  dol¬ 
lars,  to  be  taken  in  shares  of  fifty  dollars  each,  of  the  stock  of  the 
New  Shenandoah  Company,  to  be  redeemable  by  the  last  said  Com¬ 
pany,  agreeably  to  a  resolution  of  the  Potomac  Company,  passed  in 
August  last.  Ai^d  further,  that  the  Potomac  Company  do  bind  them¬ 
selves  to  secure,  by  indisputable  title,  their  rights  to  the  said  Canals, 
locks,  &c.  clear  of  the  adverse  claims  of  the  United  States  and  indi¬ 
viduals,  to  the  New  Shenandoah  Company,  especially  of  the  United 
States’  Armory,  Wilson’s,  Grove’s,  and  Craighill’s  Mills. 

It  is  understood  that  the  foregoing  agreement  is  subject  to  the  ra¬ 
tification  of  the  several  Companies,  at  their  General  Meeting.  Tlie 
New  Shenandoah  Company  being  about  to  have  their  General  Meet¬ 
ing  on  the  fifteenth  proximo,  and  the  Potomac  Company  to  be  called 


1T5 


into  General  Meeting,  as  soon  as  possible ;  unless  the  President  and 
Directors  ol'  the  Potomac  Company  shall  take  upon  themselves  the 
responsibility  of  the  said  ratification. 

Given  this  24th  day  of  October,  1815. 

CHS.  STUART,  Pres,  of  New  Sh.  Co. 
DAVID  GOLLADY, 

GEO.  HUSTON, 

CHAS.  LEWIS. 

JONAH  THOMPSON, 

for  the  Potomac  Company. 

At  a  meeting  of  the  Stockholders  of  the  Potomac  Company,  on  the 
5th  August,  1816,  the  following  resolution  was  entered  into  : 

Resolved,  That  this,  meeting  do  ratify  the  agreement  entered  into 
with  the  New  Shenandoah  Company,  by  Jonah  Thompson,  in  behalf 
of  the  President  and  Directors  of  the  Potomac  Company,  on  the  24th 
October,  1815.  It  being,  however,  expressly  understood,  that  the 
Potomac  Company  will,  in  no  way,  be  bound  to  guaranty  against  the 
adverse  claims  of  the  United  States,  to  any  canals,  or  locks,  or  other 
matters  ;  and  that  they  will  merely  convey  their  rights  to  such  canals, 
locks,  &c.  and  place  the  Shenandoah  Company,  as  to  those,  in  their 
shoes  :  and,  further,  that  the  President  and  Directors  of  the  Potomac 
Company,  have  drawn,  by  some  competent  person,  an  instrument  of 
writing,  fully  expressing  the  intention  of  the  parties,  and  have  the 
same  legally  executed  and  recorded. 


Jin  act  allowing  further  time  to  the  Potomac  Company  to  complete  the 
navigation  of  the  Potomac. — [ Passed  18 th  of  February,  1817.] 

Be  it  enacted  by  the  General  Assembly,  That  the  further  time  of 
three  years,  to  be  computed  from  the  1st  day  of  January,  one  thou¬ 
sand  eight  hundred  and  seventeen,  be  allowed  the  Potomac  Company 
to  complete  the  navigation  of  the  river  Potomac. 

2.  This  act  shall  be  in  force  from  the  passing  thereof. 


Resolution  concerning  the  upper  navigation  of  Potomac,  and  a  commu¬ 
nication  between  the  Ohio ,  Rappahannock  and  Potomac  Rivers. 

[Agreed  to  by  both  Houses  of  the  Legislature  of  Virginia,  January  8,  1820.] 

Resolved  by  the  General  Assembly,  That  the  Board  of  Public  Works 
he,  and  they  arc  hereby,  requested  to  inquire  into  the  expediency  of 
directing  their  principal  engineer  to  examine  the  waters  of  the  Poto¬ 
mac,  above  the  upper  line  of  the  District  of  Columbia,  with  a  view  to 
ascertain  and  report  upon  the  most  effectual  means  of  improving  the 


i 


176 


'navigation  of  the  same ;  and  to  explore  the  country  between  the  Po¬ 
tomac  and  the  Ohio,  on  the  one  side,  and  the  Potomac  and  the  Rappa¬ 
hannock  on  the  other,  with  a  view  to  ascertain  and  report  upon  the 
practicability  of  effecting  a  communication  by  canals  between  the 
three  rivers. 


An  act  concerning  the  Fotomac  Company. 

[Passed  January  29, 1821.) 

«  Whereas  it  is  represented  to  the  General  Assembly  that  the  Potomac 
Company  have  failed  to  comply  with  the  terms  and  conditions  of 
the  acts  of  the  Legislatures  of  the  States  of  Virginia  and  Mary- 
land,  incorporating  the  said  Company,  for  the  purpose  of  opening 
and  extending  the  navigation  of  the  river  Potomac  and  its  branches ; 
and  whereas  it  is  the  interest  of  this  Commonwealth  that  such 
measures  should  be  conjointly  adopted  by  the  Legislatures  of  the 
said  States,  as  shall  ensure  to  the  people  thereof  the  attainment  of 
the  important  objects  for  which  the  charter  of  the  said  Company 
was  granted  : 

“  Be  it  therefore  enacted  by  the  General  Assembly,  That  so  soon  as  the 
Legislature  of  Maryland  shall  pass  an  act  corresponding  with  this 
act  in  its  provisions,  the  Governor  of  this  Commonwealth,  by  and 
with  the  advice  of  the  Council  of  State,  shall  appoint  two  Commis¬ 
sioners  to  meet  such  Commissioners  as  may  be  appointed  on  the  part 
of  the  State  of  Maryland,  whose  duty  it  shall  be  to  examine  into  and 
report  the  state  of  the  navigation  of  the  said  river  and  its  branches, 
and  whether  the  same  has  been  perfected  and  completed  according  to 
the  terms  and  conditions  of  the  acts  of  incorporation  aforesaid.  iVnd 
the  said  Commissioners  so  to  be  appointed  on  the  part  of  this  State, 
are  further  directed  to  inquire  into,  and  so  far  as  they  shall  be  enabled 
to  ascertain  the  same,  to  report  the  situation  and  condition  of  the  af¬ 
fairs  of  the  said  Company ;  the  amount  and  character  of  their  debts, 
and  of  their  receipts  and  expenditures  ;  and  whether  the  present  re¬ 
sources  of  the  Company  afford  a  reasonable  expectation  of  their  effect¬ 
ing  in  a  short  time  the  objects  of  their  incorporation.  And  if  it  shall 
appear  to  the  said  Commissioners  that  the  terms  and  conditions  of  the 
acts  of  incorporation  aforesaid  have  not  been  complied  with,  or  that 
the  funds  and  resources  of  the  said  Company  are  so  far  exhausted  as 
to  afford  no  reasonable  prospect  of  attaining  in  a  short  time  the  ob¬ 
jects  of  the  said  incorporation,  then  it  shall  be  the  duty  of  the  said 
Commissioners  on  the  part  of  this  State,  to  advise  and  consult  with 
the  Commissioners  on  the  part  of  the  State  of  Maryland  as  to  the 
measures  most  advisable  to  be  recommended  to,  and  conjointly  adopt¬ 
ed  by,  the  said  States,  either  for  giving  aid  to  the  said  Company  in 
the  further  prosecution  of  the  said  work,  or  for  the  institution  of  a 


177 


prosecution  against  the  President  and  Directors  of  the  said  Company, 
for  the  purpose  of  annulling  and  vacating  the  charter  of  the  said  cor¬ 
poration. 

“  2.  Be  it  further  enacted ,  That  the  Commissioners  aforesaid  shall 
report  their  proceedings  under  this  act,  to  the  Governor  of  this  Com¬ 
monwealth,  as  soon  as  practicable,  after  they  shall  have  executed  the 
duties  prescribed  to  them  by  this  act. 

“  3.  Be  it  further  enacted,  That,  if  the  said  Commissioners  shall 
deem  it  necessary  to  have  the  aid  of  the  civil  engineer,  he  shall  attend 
the  said  Commissioners  in  the  execution  of  the  duties  prescribed  by 
this  act,  and  shall  give  to  them  his  advice  and  assistance  as  the  civil 
engineer  of  the  State,  and  assist  them  in  their  report. 

“  4.  Be  it  further  enacted ,  That  the  Governor  of  this  Common¬ 
wealth  communicate  the  passage  of  this  act,  as  soon  as  possible,  to 
the  Governor  of  Maryland,  with  a  request  that  it  may  be  laid  before 
the  legislative  body  of  that  State  as  soon  as  practicable. 

“  5.  Be  it  further  enacted ,  That  it  shall  be  the  duty  of  the  Govern¬ 
or,  and  he  is  hereby  required,  to  notify,  within  convenient  time,  to  each 
Commissioner,  the  fact  of  his  appointment;  and  it  shall  be  the  duty  of 
the  Board  of  Public  Works  to  notify  to  their  civil  engineer  the  duties 
hereby  imposed  on  him,  to  the  intent  that  they  may  be  severally  and 
strictly  performed. 

“  6.  Be  it  further  enacted ,  That  each  Commissioner  appointed  un¬ 
der  this  act,  on  the  part  of  this  State,  shall  receive  four  dollars  per 
day  for  the  time  he  shall  be  necessarily  employed  in  the  performance 
of  the  duties  prescribed  by  this  act,  to  be  certified  by  the  said  Com¬ 
missioners  ;  and  that  their  chain  carriers,  and  others  to  be  employed 
by  them,  shall  be  entitled  to  receive  such  compensation  as  the  Commis¬ 
sioners  shall  certify  to  be  just  and  reasonable;  and  the  cost  and 
charges  hereby  authorized,  shall  be  paid  out  of  the  fund  for  internal 
improvement,  under  the  superintendency  of  the  Board  of  Public  Works. 
Ajul  the  said  Commissioners  are  hereby  empowered  to  obtain,  in  such 
manner  as  they  may  think  best,  boats,  if  necessary,  for  the  purpose  of 
more  effectually  carrying  this  act  into  operation ;  to  be  paid  for  as 
before  directed.” 


EXTRACTS  FROM  ACTS  OF  THE  STATE  OF  MARYLAND,  RELATIVE  TO 
THE  POTOMAC  COMPANY. 

uJln  act  for  establishing  a  company  for  opening  and  extending  the  na¬ 
vigation  of  the  river  Potomac. — [Passed  November  Session ,  1784..] 

“  Whereas  the  extension  of  navigation  of  Potomac  river,  from  tide 
water  to  the  highest  place  practicable  on  the  north  branch,  will  be  of 
great  public  utility,  and  many  persons  are  willing  to  subscribe  large 
sums  of  money  to  effect  so  Laudable  and  beneficial  a  work,  and  it  is 
just  and  proper  that  they,  tljeir  heirs,  and  assigns,  should  lie  einpow- 
21 


118 


< 

ered  to  receive  reasonable  tolls  forever,  in  satisfaction  for  the  money 
advanced  by  them  in  carrying  the  work  into  execution,  and  the  risk 
they  run  :  And  whereas  it  may  be  necessary  to  cut  canals  and  erect 
locks  and  other  works  on  both  sides  of  the  river,  and  the  Legislatures 
of  Virginia  and  Maryland,  impressed  with  the  importance  of  the  ob¬ 
ject,  are  desirous  of  encouraging  so  useful  an  undertaking  :  Therefore, 

“  6.  And,  to  continue  the  succession  of  the  said  President  and  Direc¬ 
tors,  and  to  keep  up  the  same  number.  Be  it  enacted ,  That,  from  time 
to  time,  upon  the  expiration  of  the  said  term  for  which  the  said  Pre¬ 
sident  and  Directors  were  appointed,  the  proprietors  of  the  said  Com¬ 
pany,  at  the  next  general  meeting,  shall  either  continue  the  said  Pre¬ 
sident  and  Directors,  or  any  of  them,  or  choose  others  in  their  stead; 
and  in  case  of  the  death,  removal,  resignation,  or  incapacity,  of  the 
President,  or  any  of  the  said  Directors,  may,  and  shall,  in  manner 
aforesaid,  elect  any  other  person  or  persons  to  be  President  and  Di¬ 
rectors,  in  the  room  of  him,  or  them,  so  dying,  removing,  or  resign¬ 
ing,  and  may,  at  any  of  their  general  meetings,  remove  the  President, 
or  any  of  the  directors,  and  appoint  others  for  and  during  the  remain¬ 
der  of  the  term  for  which  such  person  or  persons  were  at  first  to  have 
acted. 

“  7.  And  be  it  enacted,  That  every  President  and  Director,  before 
he  acts  as  such,  shall  take  an  oath  or  affirmation  for  the  due  execution 
of  his  office. 

«  8.  And  be  it  enacted ,  That  the  presence  of  proprietors,  having  one 
hundred  shares  at  the  least,  shall  be  necessary  to  constitute  a  general 
meeting,  and  that  there  be  a  general  meeting  of  proprietors  on  the 
first  Monday  of  August  in  every  year,  at  such  convenient  town  as 
shall  be,  from  time  to  time,  appointed  by  the  said  general  meeting ; 
but  if  a  sufficient  number  should  not  attend  on  that  day,  the  proprie¬ 
tors  who  do  attend  may  adjourn  such  meeting  from  day  to  day  till  a 
general  meeting  of  proprietors  shall  be  had,  which  may  be  continued 
from  day  to  day  until  the  business  of  the  company  is  finished ;  to 
which  meeting  the  President  and  Directors  shall  make  report,  and 
render  distinct  and  just  accounts  of  all  their  proceedings,  and  on  find¬ 
ing  them  fairly  and  justly  stated,  the  proprietors  then  present,  or  a 
majority  of  them,  shall  give  a  certificate  thereof,  a  duplicate  of  which 
shall  be  entered  on  the  said  company’s  books  ;  and  at  such  yearly  gene¬ 
ral  meetings,  after  leaving  in  the  hands  of  the  Treasurer  such  sum  as 
the  proprietors,  or  a  majority  of  them,  shall  judge  necessary  for  re¬ 
pairs  and  contingent  charges,  an  equal  dividend  of  all  the  nett  pro¬ 
fits  arising  from  the  tolls  hereby  granted,  shall  be  ordered  and  made 
to  and  among  all  the  proprietors  of  the  said  company,  in  proportion 
to  their  several  shares ;  and  upon  any  emergency,  in  the  interval  be¬ 
tween  the  said  yearly  meetings,  the  said  President,  or  a  majority  of 
the  said  Directors,  may  appoint  a  general  meeting  of  the  proprietors 
of  the  said  company,  at  any  convenient  town,  giving  at  least  one 
month’s  previous  notice  in  the  Maryland  and  Virginia  Gazettes,  which 
meeting  may  be  adjourned  and  continued  as  aforesaid. 


179 


•«  itX.  And  be  it  enacted ,  That  the  said  river,  and  the  works  to  be 
erected  thereon,  in  virtue  of  this  act,  when  completed,  shall  forever 
thereafter  be  esteemed  and  taken  to  be  navigable  as  a  public  highway, 
free  for  the  transportation  of  all  goods,  commodities,  or  produce,  what¬ 
soever,  on  payment  of  tolls  imposed  by  this  act;  and  no  other  toll 
or  tax  whatever,  for  the  use  of  the  water  of  the  said  river,  and  the 
works  thereon  erected,  shall  at  any  time  hereafter  be  imposed  by  both 
or  either  of  the  said  States,  jsubject,  nevertheless,  to  such  regulations 
as  the  Legislatures  of  the  said  States  may  concur  in,  to  prevent  the 
importation  of  prohibited  goods,  or  to  prevent  fraud  in  evading  the 
payment  of  duties  imposed  in  both  or  either  of  the  said  States,  on 
goods  imported  into  either  of  them. 

*11.  And,  whereas  it  is  necessary  for  the  making  the  said  canal, 
locks,  and  other  works,  that  a  provision  should  be  made  for  condemn¬ 
ing  a  quantity  of  land  for  the  purpose:  Be  it  enacted ,  That  it  shall 
and  may  be  lawful  for  the  said  President  and  Directors,  or  a  majority 
of  them,  to  agree  with  the  owners  of  any  land  through  which  the  said 
canal  is  intended  to  pass,  for  the  purchase  thereof;  and  in  case  of  dis¬ 
agreement,  or  in  case  the  owner  thereof  shall  be  a  feme  covert,  under 
age,  non  compos,  or  out  of  the  State,  on  application  to  any  two  jus¬ 
tices  of  the  country  in  which  such  land  shall  lie,  the  said  justices  shall 
issue  their  warrant,  under  their  hands,  to  the  sheriff  of  their  county, 
to  summon  a  jury  of  twenty-four  inhabitants  of  his  county,  of  proper¬ 
ty  and  reputation,  not  related  to  tiie  parties,  nor  in  any  manner  in¬ 
terested,  to  meet  on  the  land  to  be  valued,  at  a  day  to  be  expressed 
in  the  warrant,  not  less  than  ten,  nor  more  than  twenty  days  there¬ 
after^  and  the  sheriff,  upon  receiving  the  said  warrant,  shall  forth¬ 
with  summon  the  said  jury,  and,  when  met,  shall  administer  an  oath 
or  affirmation  to  every  juryman  that  shall  appear,  that  he  will  faith¬ 
fully,  justly,  and  impartially,  value  the  land,  (not  exceeding  in  any 
case  the  width  of  two  hundred  feet,)  and  all  damages  the  owner 
thereof  shall  sustain  hy  the  cutting  the  canal  through  such  land,  ac¬ 
cording  to  the  best  of  his  skill  and  judgment,  and  that  in  such  valua¬ 
tion,  he  will  not  spare  any  person  for  favor  or  affection,  nor  any  per¬ 
son  grieve  for  hatred,  malice,  or  ill-will:  and  the  inquisition  there¬ 
upon  taken  shall  be  signed  by  the  sheriff  and  some  twelve  or  more  of 
the  jury,  and  returned  by  the  sheriff  to  the  clerk  of  his  county,  to  be 
by  him  recorded:  and  upon  every  such  valuation,  the  jury  is  hereby 
directed  to  describe  and  ascertain  the  bounds  of  the  land  by  them 
valued,  and  their  valuation  shall  be  conclusive  on  all  persons,  and 
shall  he  paid  by  the  said  President  and  Directors  to  the  owner  of  the 
land  or  his  legal  representative;  and,  on  payment  thereof,  the  said 
company  shall  be  seized  in  fee  of  such  land,  as  if  conveyed  by  the 
owner  to  them  and  their  successors  hy  legal  conveyance;  Provided, 
nevertheless,  that  if  any  further  damage  shall  arise  to  any  proprietor 
of  land  in  consequence  of  opening  such  canal,  or  in  erecting  such 
works,  than  had  been  before  considered  and  valued,  it  shall  and  may 
be  lawful  for  such  proprietor,  as  often  as  any  such  new  damage  shall 
happen,  by  application  to,  and  a  warrant  from,  any  two  justices  of  the 


180 


county  where  the  lands  lie,  to  have  such  further  damage  valued  by  a 
jury  in  like  manner,  and  to  receive  and  recover  the  same  of  the  said 
President  and  Directors;  but  nothing  herein  shall  be  taken  or  con¬ 
strued  to  entitle  the  proprietors  of  any  such  lands  to  recover  com¬ 
pensation  for  any  damages  which  may  happen  to  any  mills,  forges, 
or  other  works  or  improvements,  which  shall  be  begun  or  erected  by 
such  proprietor  after  such  first  valuation,  unless  the  same  damage  is 
wilfully  or  maliciously  done  by  the  said  President  and  Directors,  or 
some  person  by  their  authority. 

“  14.  And  be  it  enacted ,  That  it  shall  and  may  be  lawful  for  every  of 
the  said  proprietors  to  tr  ansfer  his  share  or  shares,  by  deed,  executed 
before  two  witnesses,  and  registered,  after  proof  of  the  execution 
thereof,  in  the  said  company’s  books,  and  not  otherwise,  except  by 
devise,  which  devise  shall  also  be  exhibited  to  the  President  and  Direc¬ 
tors,  and  registered  in  the  company’s  books,*  before  the  devisee  or  de¬ 
visees  shall  be  entitled  to  draw  any  part  of  the  profits  from  the  said 
tolls;  Provided ,  that  no  transfer  whatsoever  shall  be  made,  except  for 
one  or  more  whole  share  or  shares,  and  not  for  part  of  such  shares  ; 
and  that  no  share  shall,  at  any  time,  be  sold,  conveyed,  transferred, 
or  held  in  trust,  for  the  use  and  benefit,  or  in  the  name  of  another, 
whereby  the  said  President  and  Directors,  or  proprietors  of  the  said 
company,  or  any  of  them,  shall  or  may  be  challenged,  or  made  to  an¬ 
swer  concerning  any  such  trust,  but  that  every  person  appearing  as 
aforesaid  to  be  a  proprietor,  shall,  as  to  the  others  of  the  company,  be 
to  every  intent  takc^i  absolutely  as  such,  but  as  between  any  trustee 
and  the  person  for  whose  benefit  any  trust  shall  be  created,  the  com¬ 
mon  remedy  may  be  pursued. 

“  16.  And  be  it  enacted ,  That  if  the  said  capital,  and  the  other  aids 
already  granted  by  this  act,  shall  prove  insufficient,  it  shall  and  may 
be  lawful  for  the  said  company,  from  time  to  time,  to  increase  the  said 
capital,  by  the  addition  of  so  many  more  whole  shares  as  shall  be 
judged  necessary  by  the  said  proprietors,  or  a  majority  of  them,  hold¬ 
ing  at  least  three  hundred  shares,  present  at  any  general  meeting  of 
the  said  company  ;  and  the  said  President  and  Directors,  or  a  majority 
of  them,  are  hereby  empowered  and  required,  after  giving  at  least  one 
month’s  previous  notice  thereof,  in  the  Maryland  and  Virginia  Ga¬ 
zettes,  to  open  hooks  in  the  beforementioned  places  for  receiving  and 
entering  such  additional  subscriptions,  in  which  the  proprietors  of 
the  said  company,  for  the  time  being,  shall,  and  are  hereby  declared 
to  have  the  preference  of  all  others,  for  the  first  thirty  days  after  the 
said  books  shall  be  opened  as  aforesaid,  of  taking  and  subscribing  for 
so  many  whole  shares  as  any  of  them  shall  choose;  and  the  said  Pre¬ 
sident  and  Directors  are  hereby  required  to  observe  in  all  other  re¬ 
spects  the  same  rules  therein  as  are  by  this  act  prescribed  for  receiv¬ 
ing  and  adjusting  the  first  subscriptions,  and  in  like  manner  to  return,, 
under  the  hands  of  any  three  or  more  of  them,  an  exact  list  of  such 
additional  subscribers,  with  the  sums  by  them  respectively  subscribed, 
in  the  general  courts  as  aforesaid,  to  be  there  recorded  ;  and  all  pro¬ 
prietors  of  such  additional  shares,  shall,  and  are  hereby  declared  to- 
be,  from  thenceforward,  incorporated  into  the  said  company* 


181 


“20.  And,  to  encourage  and  promote  the  said  undertaking,  Be  it  eit » 
acted ,  That  if  the  State  of  Virginia  shall  subscribe  fifty  shares,  in 
such  case  the  Treasurer  of  the  Western  Shore  be  authorized  arid  di¬ 
rected  to  subscribe,  in  behalf  of  tins  State,  a  like  number  of  shares, 
and  the  money  necessary  to  be  paid  in  consequence  of  such  subscrip¬ 
tion,  shall  be  paid  by  this  State ;  and  the  Treasurer  of  the  Western 
Shore,  for  the  time  being,  shall  have  a  right  to  vote  according  to  such 
shares,  in  person,  or  by  pro^  appointed  by  him  ;  and  the  said  Trea¬ 
surer  shall  receive  the  proportion *of  the  tolls  aforesaid,  which  shall, 
from  time  to  time,  be  due  to  the  State  for  the  shares  aforesaid. 

“21.  This  act,  and  every  part  thereof,  to  be  of  no  effect,  unless  an 
act  shall  be  passed  by  the  Legislature  of  Virginia  upon  similar 
principles.” 

— • — 

A  supplement  to  the  act ,  entitled  “An  act  for  establishing  a  company  for 
opening  and  extending  the  navigation  of  the  river  Potomac. — [Pass¬ 
ed  at  November  session ,  1785.] 

“Whereas  the  President  and  Directors  of  the  Potomac  Company, 
by  their  humble  petition  to  this  General  Assembly,  and  the  Gene¬ 
ral  Assembly  of  the  Commonwealth  of  Virginia,  on  behalf  of  the 
said  company,  have  set  forth  that,  in  pursuance  of  the  acts  of  As¬ 
sembly  of  the  Commonwealth  of  Virginia  and  this  State,  entitled 
An  act  for  establishing  a  company  for  opening  and  extending  tht 
navigation  of  the  river  Potomac,  they  purpose  to  make  a  canal 
on  one  level,  to  be  supplied  by  the  current  of  the  river  from  a  lit¬ 
tle  above  the  Great  Falls  of  Potomac,  to  a  convenient  place  be¬ 
low  tttose  Falls,  where  they  design  to  effect  a  communication  with 
the  bed  of  the  river  by  connected  locks;  and  that  they  are  under 
the  strongest  impressions,  if  any  canal  and  locks  should  be  found 
necessary  or  useful  at  the  Little  Falls  of  the  said  river,  that 
another  such  cut,  on  one  level,  and  a  waste  of  the  whole  fall,  by  a 
set  of  locks  at  tide  water,  will  be  preferable  there,  on  every  ac¬ 
count;  and  that,  as  the  depth  of  water  in  such  canals  will  be  in¬ 
creased  on  the  rise  of  the  water  in  the  river,  so  as  to  permit  an 
easy  passage  for  all  such  boats  and  rafts  as  can  pass  in  tho  river, 
even  less  than  two  feet  depth  of  water  in  the  said  canals,  in  dry 
seasons,  with  the  certain  necessary  increase  on  the  rise  of  the 
river,  will  he  fully  sufficient,  instead  of  the  four  feet  required  by 
the  said  acts,  to  answer  all  useful  purposes;  and,  that  cutting  the 
said  canals  four  feet  below  the  level  of  the  water  in  dry  seasons, 
will  very  greatly  and  uselessly  enhance  the  expense  of  the  canals, 
occasion  considerable  delay  in  the  work,  and  render  it,  in  a  degree, 
less  secure  :  and  have  therefore  prayed,  that  acts  of  both  Assem¬ 
blies  may  pass,  making  it  necessary  that  such  canals  contain  two 
only,  instead  of  the  four  feet,  required  by  the  said  acts  :  or,  that, 
if  the  level  should  be  broke  by  locks  placed  apart  from  each  other, 
that  the  first  level  may  necessarily  contain  only  two  feet  depth, 


182 


and  the  other  or  rest  four  :  all  which  suggestions  appearing  to  this 
General  Assembly  to  be  true,  and  the  prayer  of  the  said  petition 
to  be  reasonable. 

“  1 .  Be  it  enacted  by  the  General  Assembly  of  Maryland ,  That  any 
canal  which  shall  be  cut  or  made  on  one  level  by  the  Potomac 
Company,  at  the  Great  or  Little  Falls  of  Potomac  river,  supplied 
by  the  current  of  that  river,  containing  two  feet  depth  of  water  at 
the  least,  in  dry  seasons,  and  communicating  again  with  the  river,  by 
locks,  if  necessary,  the  spaces  between  tbe  locks,  if  they  should  be 
placed  distant  from  each  other,  containing  four  feet  depth  of  water, 
shall  be  equally  available,  to  every  intent  and  purpose;  and  the  said 
company  shall  be  entitled  to  the  same  tolls,  and  shall  have  all  the 
rights  whatsoever,  as  if  the  wholefcof  such  canals  had  been  made  to 
contain  four  feet  depth  of  water,  agreeable  to  the  directions  of  the 
said  acts  ;  any  thing  in  the  said  acts  to  the  contrary  notwithstand¬ 
ing. 

*•3.  This  act  to  take  place  as  soon  as  a  similar  law  shall  be  passed 
by  the  Legislature  of  the  Commonwealth  of  Virginia.” 


A  second  supplement  to  the  Act  for  establishing  a  company  for  opening 
and  extending  the  navigation  of  the  river  Potomac. — [ Passed  No¬ 
vember  session ,  1786.] 

«  Whereas  the  two  last  Summers  have  been  so  unfavorable  to  the  work 
of  making  and  improving  the  navigation  above  tbe  Great  Falls  in 
tbe  Potomac  river,  that  the  same  cannot  probably  be  perfected 
within  the  three  years  limited  and  allowed  by  the  act  for  establish¬ 
ing  a  company  for  opening  and  extending  the  navigation  of  the 
river  Potomac:  Therefore, 

“  2.  Be  it  enacted  by  the  General  Assembly  of  Maryland ,  That  the 
said  Potomac  Company  shall  have,  and  bo  allowed,  until  the  seven¬ 
teenth  day  of  November,  one  thousand  seven  hundred  and  ninety,  for 
making  and  improving  the  navigation  between  the  Great  Falls  and 
Fort  Cumberland;  and  that,  on  the  same  being  done,  in  the  manner 
prescribed  by  the  said  act,  before  the  said  seventeenth  day  of  Novcm- 
ber,  the  said  company  shall  be  entitled  to  all  tolls,  profits,  and  ad 
vantages,  as  if  the  same  were  done  within  the  three  years  allowed 
by  the  said  act,  any  thing  contained  in  the  said  act  to  the  contrary 
notwithstanding. 

«  3.  This  act  to  take  place  as  soon  as  a  similar  law  shall  be  passed 
by  the  Legislature  of  the  Commonwealth  of  Virginia.” 


I 


183 

J1  further  supplement  to  the  act  for  establishing  a  company  for  opening 
and  extending  the  navigation  of  the  river  Fotomac . — [ Passed  No¬ 
vember  Session 9  1790.] 

Whereas  the  President  and  Directors  of  the  Potomac  Company,  by 
their  humble  petition  to  this  General  Assembly,  and  the  General 
Assembly  of  the  Commonwealth  of  Virginia,  on  behalf  of  the  said 
company,  for  the  facts  and  reasons  therein  set  forth,  have  pray¬ 
ed,  that  acts  of  the  said  Assemblies  may  pass,  lengthening  the  time 
for  making  and  improving  the  navigation  above  the  Great  Falls  of 
the  said  river  ;  that  none  of  the  forty-six  shares  not  already  sub¬ 
scribed  for  be  taken  up  but  on  first  paying  the  full  amount  of  the 
previous  calls,  and  interest  from  the  time  the  calls  ought  to  have 
been  complied  with  ;  compelling  delinquent  subscribers  to  pay  in¬ 
terest  from  the  time  the  money  ought  to  have  been  paid,  with  the 
actual  expense  of  notice,  and  that  the  same  may  be  recovered  with, 
and  in  like  manner,  as  the  principal ;  enabling  foreigners  to  pur¬ 
chase,  subscribe  for,  and  hold  shares  ;  changing  the  place  of  col¬ 
lection  of  tolls  at  or  near  Hook’s  Falls,  instead  of  at  or  near 
Payne’s  Falls ;  allowing  one  third,  or  such  other  proportion  as  the 
said  Assemblies  might  think  reasonable,  of  the  tolls  payable  at  the 
Great  Falls,  on  the  navigation  being  completed  at  and  through  the 
Falls,  and  thence  to  tide  water,  to  be  henceforth  demandable  and 
received  at  the  Great  Falls,  and,  also,  at  or  near  the  mouth  of 
Watts’s  Branch,  on  goods,  commodities,  or  produce,  landed  at  the 
Great  Falls,  or  at  or  near  the  mouth  of  Watts’  Branch,  respec¬ 
tively  ;  and  empowering  the  President  and  Directors  to  apply  any 
part  of  the  capital  of  the  said  company,  and,  also,  the  tolls,  as  they 
may  arise,  in  opening,  improving,  and  extending  the  navigation 
on  the  branches  of  the  said  river  above  Seneca ;  which  being 
thought  reasonable — 

2.  Be  it  enacted  by  the  General  Assembly  of  Maryland ,  That  the  said 
Potomac  Company  have,  and  be  allowed,  until  the  first  day  of  Janu¬ 
ary,  one  thousand  seven  hundred  and  ninety-five,  for  making  and 
improving  the  navigation  between  the  Great  Falls  and  Fort  Cumber¬ 
land,  .  and  on  the  same  being,  done  in  the  manner  prescribed  by  the 
original  act,  shall  be  entitled  to  all  tolls,  profits,  and  advantages,  as 
if  the  same  was  done  within  the  three  years  allowed  by  the  same  act. 

“  3.  And  be  it  enacted ,  That  no  share  in  the  said  company,  not  al¬ 
ready  subscribed  for,  shall  be  taken  up  or  filled,  but  on  first  paying 
the  full  amount  of  all  previous  calls,  with  interest  from  the  time  the 
calls  ought  to  have  been  complied  with  ;  and  that  delinquent  subscri¬ 
bers  and  holders  of  shares  shall  pay  interest  from  the  time  the  money 
ought  to  have  been  paid  by  them  respectively,  on  any  calls  made,  or 
to  be  made,  together  with  the  actual  expense  incurred  by  the  compa¬ 
ny  on  serving  notice  on  which  to  ground  a  motion  for  judgment 
against  any  such  delinquent ;  and  that  the  interest  shall  be  recover¬ 
ed  with,  and  in  the  same  manner,  as  the  principal,  and  the  expense 
of  notice  shall  be  taxed  with  the  other  costs. 


184 


“  4.  And  be  it  enacted ,  That  foreigners  shall  be  and  are  hereby  en¬ 
abled  to  subscribe  for,  purchase,  and  hold  shares  in  the  said  company. 

« ‘5.  And  be  it  enacted ,  That  the  tolls  which  were  granted  to  be 
demanded  and  received  at  or  near  Payne’s  Falls,  may  be  demanded, 
collected,  and  received,  at  or  near  Hook’s  Falls,  in  the  same  manner 
as  they  might  have  been  collected  and  received  at  or  near  Payne’s 
Falls  aforesaid,  and  in  the  stead  thereof ;  and  that  one  third  part  of 
such  tolls  as  would  be  payable  at  the  Great  Falls  on  the  navigation 
being  completed  at  and  through  those  Falls,  and  thence  to  tide  water, 
may  henceforth,  until  the  whole  shall  become  payable,  be  demanded, 
collected,  and  received,  at  the  Great  Falls,  and,  also,  at  some  con¬ 
venient  place,  at  or  near  the  mouth  of  Watts’s  Branch,  on  all  goods, 
commodities,  and  produce,  landed  at  the  Great  Falls,  or  at  or  near 
the  mouth  of  Watts’s  Branch,  respectively,  and  the  same  mode  may 
be  pursued  for  compelling  payment  thereof,  as  may  be  lawfully  used 
to  compel  payment  of  other  tolls  to  the  said  company. 

“  6.  And  be  it  enacted ,  That  the  President  and  Directors  of  the  said 
company  for  the  time  being  may,  from  time  to  time,  apply  any  part 
of  the  capital  stock  of  the  said  company,  and,  also,  the  tolls  as  they 
may  arise,  in  opening,  improving,  and  extending,  the  navigation  of 
the  branches  of  the  said  river  above  Seneca :  Provided ,  that  no  such 
application  shall  be  made  until  the  main  river,  from  tide  water,  is 
cleared  to  Fort  Cumberland. 

“  7.  This  act  to  take  place,  and  be  in  force,  on  a  similar  act  there¬ 
to  being  passed  by  the  General.  Assembly  of  Virginia,  and  not  other¬ 
wise. 


An  act  to  repeal  part  of  an  act ,  entitled  a  further  supplement  to  the  act 
for  establishing  a  company  for  opening  and  extending  the  navigation 
of  the  river  Potomac. — [Passed  April  Session,  1792.] 

Be  it  enacted  by  the  General  Assembly  of  Maryland ,  That  the  pro¬ 
viso  at  the  end  of  the  sixth  section  of  the  said  act,  in  the  following 
words:  “  Provided,  that  no  such  application  shall  be  made,  until 
the  main  river,  from  tide  water,  is  cleared  to  Fort  Cumberland,” 
be,  and  the  same  is  hereby,  repealed. 


An  act  relating  to  the  Potomac  Company ,  and  the  navigation  of  the 
Potomac  river. — [Passed  at  November  Session,  1794.] 

Whereas  a  variety  of  unforeseen  difficulties  have  occurred  in  the 
opening  of  the  Potomac  river,  and  have  unavoidably  delayed  the 
same  being  rendered  navigable :  and  whereas  it  is  but  reasonable 
and  just  that  those  who  have  advanced  such  large  sums  of  money 
in  the  prosecution  of  a  work  of  great  public  and  national  impor- 
.  tance,  and  have  so  nearly  effected  the  same,  should  have  a  further 
reasonable  time  for  the  completion  thereof :  Therefore — 


185 


2.  Be  it  enacted  by  the  General  Assembly  of  Maryland ,  That  so 
much  of  an  act  of  the  General  Assembly,  passed  at  November  ses¬ 
sion,  seventeen  hundred  and  eighty-seven,  entitled  “  An  act  giving 
a  more  speedy  remedy  against  delinquent  subscribers  to  the  Potomac 
Company,’’  shall  be,  and  the  same  is  hereby,  repealed ;  and  so  much 
of  the  act  of  Assembly,  entitled  "  An  act  for  establishing  a  company 
for  opening  and  extending  the  navigation  of  the  river  Potomac,”  as 
directed  the  sale  of  the  shares  of  delinquent  subscribers,  shall  be  and 
remain  in  full  force  and  effect. 

3.  And  be  it  further  enacted ,  That  the  time  for  completing  the  na¬ 
vigation  of  the  Potomac  river  be,  and  is  hereby,  further  extended  un¬ 
til  the  first  day  of  January,  seventeen  hundred  and  ninety-eight ;  and 
that  no  privilege  or  advantage  granted  by  law,  shall  be  forfeited  or 
lost,  in  case  the  navigation  aforesaid  shall  be  finished  within  the  time 
hereby  limited  ;  any  thing  in  any  act  to  the  contrary  notwithstand¬ 
ing. 

4.  And  be  it  further  enacted ,  That  the  several  tolls  made  payable 
by  the  act  of  the  General  Assembly,  entitled  “  An  act  for  establish¬ 
ing  a  company  fpr  opening  and  extending  the  navigation  of  the  river 
Potomac,”  at  Payne’s  Falls,  shall,  instead  thereof,  be  payable  at 
Hook’s  Falls;  and  the  tolls  by  said  act  made  payable  at  the  Great 
Falls,  shall  be  made  payable  at  the  Great  Falls  and  at  Watts’s 
Branch,  in  such  proportion  as  shall  be  directed  by  the  President  and 
Directors  of  the  Potomac  Company  ;  and  that  the  tolls  by  said  act 
made  payable  at  the  mouth  of  the  South  Branch,  shall  be,  and  are 
hereby,  made  payable  at  some  convenient  place  between  the  mouths 
of  Great  Cacapeton  and  Conococheaguq,  to  be  appointed  by  the  Pre¬ 
sident  and  Directors  of  the  Potomac  Company ;  any  thing  in  any  for¬ 
mer  act  or  acts  of  Assembly  to  the  contrary  notwithstanding.  ' 


An  act  for  enlarging  the  capital  of  this  State  in  the  Potomac  Com¬ 
pany . — [ Passed  November  Session ,  1795.] 

1.  Be  it  enacted  by  the  General  Assembly  of  Maryland,  That  the 
Treasurer  of  the  Western  Shore  of  this  State  be,  and  he  is  hereby, 
authorized  and  directed  to  subscribe,  in  behalf  of  this  State,  forty 
shares  in  the  augmented  capital  of  the  Potomac  Company,  and  to 
pay  the  sum  of  five  hundred  and  seventy-seven  dollars  and  seventy- 
eight  cents  on  each  of  said  shares  ;  and  the  said  Treasurer  shall  re¬ 
ceive  the  proportion  of  tolls  which  shall,  from  time  to  time,  be  due 
to  the  State  for  the  said  shares ;  and  the  said  Treasurer  shall  have  a 
right  to  vote  for  said  shares  in  person,  or  by  proxy  appointed  by  him. 

2.  And  be  it  enacted,  That  the  Treasurer  shall  not  subscribe  for 
any  9hare  in  the  said  Company,  until  the  President  thereof  shall  no¬ 
tify  to  him,  in  writing,  that  the  whole  of  the  residue  of  the  said 
shares  are  subscribed  for ;  and  the  payment  of  the  shares  subscribed 

22 


186 


for  by  the  Treasurer,  shall  be  made  at  the  times,  and  in  the  propor¬ 
tion,  required  of  the  individual  stockholders  in  the  said  augmented 
capital. 


A  supplement  to  the  act  for  enlarging  the  capital  of  this  State  in  the 
Potomac  Company . — [_ Passed  November  Session ,  1795.] 

Whereas,  by  an  act,  entitled  An  act  for  enlarging  the  capital  of  this 
State  in  the  Potomac  Company,  passed  at  this  present  session  of 
Assembly,  the  President  and  Directors  of  the  Company  for  open¬ 
ing  and  extending  the  navigation  of  the  river  Potomac  have  aug¬ 
mented  the  capital  of  said  Company  to  one  hundred  shares  more, 
and  the  Treasurer  of  this  State  is  authorized  and  directed,  upon 
the  terms  and  conditions  therein  expressed,  to  subscribe,  on  behalf 
of  the  State,  for  forty  shares  in  the  said  augmented  capital — 

2.  Be  it  enacted  by  the  General  Assembly  of  Maryland ,  That,  un¬ 
less  the  President  and  Directors  aforesaid,  shall  dispose  of  sixty 
shares  of  the  said  augmented  capital  for  the  sum  of  one  hundred  and 
thirty  pounds  sterling  each  share,  they  shall  have  no  authority  to  call 
for,  or  receive  from,  the  Treasurer  of  this  State,  any  subscription  for 
any  part  of  the  said  augmented  capital  which,  by  the  said  act,  he  is 
authorized  to  subscribe,  nor  for  any  payment  of  the  said  subscription, 
but  in  the  same  proportion  as  the  other  subscribers  to  the  said  aug¬ 
mented  capital  shall,  from  time  to  time,  pay  and  advance  to  the  said 
President  and  Directors  the  amount  of  their  respective  subscriptions, 
nor  until  the  said  President  and  Directors  shall  certify  to  the  said 
Treasurer,  under  their  hands,  that  the  preceding  instalments  have 
been  paid  on  every  share  of  said  augmented  capital. 


An  act  to  authorize  and  empower  the  President  and  Directors  of  the 
Potomac  Company  to  contract  the  breadth  of  the  locks  at  the  Great 
Falls  of  Potomac. — [Passed  November  Session ,  1796.] 

“  Whereas,  by  an  act  of  the  General  Assembly,  passed  November  ses¬ 
sion,  one  thousand  seven  hundred  and  eighty-four,  entitled  An  act 
for  establishing  a  company  for  opening  and  extending  the  naviga¬ 
tion  of  the  river  Potomac,  it  is,  amongst  other  things,  provided, 
that  the  tolls  therein  established  shall  be  payable  only  on  condition 
the  said  Potomac  Company  shall  make  the  river  well  capable  of 
being  navigated,  in  dry  seasons,  from  Payne’s  Falls  to  the  Great 
Falls,  by  vessels  drawing  one  foot  water,  and  from  the  Great  Falls 
to  tide  water,  and  shall,  at  or  near  the  Great  Falls,  make  a  cut  or 
canal  twenty-five  feet  wide,  and  four  feet  deep,  with  sufficient 


187 


locks,  if  necessary,  each  of  eighty  feet  in  length,  sixteen  feet  in 
breadth,  and  capable  of  conveying  vessels  or  rafts  drawing  four 
feet  water  at  the  least :  And  whereas  it  is  represented  to  this  Gen¬ 
eral  Assembly,  by  the  President  and  Directors  of  the  Potomac 
Company,  that  the  breadth  of  the  locks  as  above  directed  is  unne¬ 
cessarily  great,  and  that  the  contraction  of  the  same  to  the  breadth 
of  fourteen  feet  would  render  the  said  locks  more  complete,  and 
considerably  lessen  the  expense  of  finishing  the  same — 

“2.  Be  it  enacted  by  the  General  Assembly  of  Maryland ,  That  the 
President  and  Directorsof  the  said  Potomac  Company,  or  a  majority 
of  them,  be,  and  they  are  hereby,  authorized  and  empowered  to  con¬ 
tract  the  locks  at  the  Great  Falls  of  Potomac  to  any  breadth  they 
)  may  think  proper,  provided  the  same  be  not  of  less  breadth  than 
fourteen  feet ;  and  that,  when  the  said  locks  are  completed  of  the 
breadth  hereby  authorized,  the  said  company  be  entitled  to  all  the 
tolls,  benefits,  and  advantages  therefrom,' which,  by  law,  they  would 
be,  provided  the  said  locks  had  been  completed  of  the  breadth  of  six¬ 
teen  feet,  any  thing  in  any  act  to  the  contrary  notwithstanding.” 


An  act  to  authorize  the  Potomac  Company  to  receive  tolls  on  produce 
i  carried  through  the  canal  at  the  Great  Falls ,  and  for  other  pur¬ 

poses  therein  mentioned — [ Passed  November  Session,  1797.] 

4i  Whereas  the  Potomac  Company  have  by  their  petition  set  forth 
to  this  General  Assembly,  that  they  have  at  a  great  expense  re¬ 
moved  most  of  the  obstructions  in  the  Potomac  river,  from 
Savage  river  to  tide  water,  except  those  at  the  Great  Falls;  that 
considerable  quantities  of  produce  are  now  brought  down  by  boats 
%  to  Williamsport,  Watts’s  Branch,  and  the  Great  Falls,  by  which 

much  time,  labor,  and  expense,  are  saved  to  the  owners  of  such 
produce ;  that  many  articles  are  now  transported  through  the  locks 
S  at  the  Little  Falls  without  paying  any  toll  whatever;  that  the  com¬ 

pany,  to  facilitate  the  transportation  of  produce  down  said  river, 
have  constructed  an  inclined  plane  from  the  lower  end  of  the  canal 
to  the  surface  of  the  river  below  the  Great  Falls,  by  means  of  which 
machine  all  articles  can  be  let  down,  and  those  not  of  great  bulk  or 
weight  taken  up,  with  security  and  despatch ;  that  a  warehouse  is 
also  provided  for  storing  such  articles  when  found  necessary,  or 
when  boats  are  not  ready  for  transporting  said  produce  down  the 
said  river;  that  those  now  navigating  the  said  river  receive  great 
benefit  from  the  improvement  of  the  navigation  by  the  labor  and 
expenditures  of  said  company;  they  conceive  it  to  be  just  and  rea¬ 
sonable  that  they  should  make  some  compensation  for  the  benefits 
received  ;  all  which  appears  to  be  reasonable  :  Therefore, 

“  2.  Be  it  enacted  by  the  General  Assembly  of  Maryland ,  That  the 
Potomac  Company  be,  and  hereby  are,  authorized  and  empowered 


# 


188 


to  receive,  at  or  near  the  mouth  of  Conococheague,  the  tolls  payable 
at  that  place  on  articles  transported  thither,  also,  the  tolls  payable 
at  Watts’s  Branch  and  the  Great  Falls,  upon  all  articles  brought  down 
to  those  places,  or  either  of  them,  in  the  same  manner  as  if  the  locks 
at  the  Great  Falls  were  now  complete;  and,  also,  to  receive  the  tolls 
upon  such  articles  as  are  brought  up  the  river  to  the  Great  Falls  : 
Provided ,  That  the  said  company,  at  their  own  expense,  carry  all  pro¬ 
duce  brought  to  the  said  inclined  plane  down  or  up  the  same,  as  the 
case  may  be,  and,  if  required,  store  the  said  produce,  or  deliver  it 
along  side  the  said  boats  in  which  it  is  intended  to  be  carried  down 
the  river,  at  their  own  risk  and  cost. 

"  3.  And  be  it  enacted ,  That  the  said  Potomac  Company  be  autho¬ 
rized  and  empowered,  and  are  hereby  authorized  and  empowered,  to 
receive  on  all  articles  transported  through  the  locks  finished  and  com¬ 
pleted  at  the  Little  Falls,  the  same  rates  and  tolls  payable  on  said 
articles  at  Hook’s  Falls,  and  at  or  near  the  mouth  of  Conococheague, 
provided  such  articles  have  not  before  paid  any  tolls  at  any  other 
place  in  said  river  above  the  said  Little  Falls. 

“4.  And  be  it  enacted ,  That  the  time  for  completing  the  navigation 
of  Potomac  river  be,  and  is  hereby,  further  extended  until  the  first 
day  of  January,  eighteen  hundred  and  three,  and  that  no  privilege  or 
advantage  granted  by  law  shall  be  forfeited  or  lost,  in  case  the  navi¬ 
gation  aforesaid  shall  be  finished  within  the  time  hereby  limited,  any 
thing  in  any  act  to  the  contrary  notwithstanding.” 


An  act  concerning  the  Potomac  Company . — [Passed  November  Session9 

1802.] 

“  Whereas  the  object  contemplated  by  the  act  of  Assembly  for  estab¬ 
lishing  a  company  for  opening  and  extending  the  navigation  of  the 
river  Potomac,  has  been  accomplished, 

“2.  Be  it  enacted  by  the  General  Assembly  of  Maryland ,  Th^t  the 
proprietors  of  shares  in  the  said  Potomac  Company,  their  heirs 
and  assigns,  shall  and  may  demand,  take,  and  receive,  tolls,  at  the 
several  and  respective  places  heretofore  fixed  by  law  for  the  payment 
and  receipt-  thereof,  to  wit :  at  or  near  the  mouth  of  Conococheague, 
Hook’s  Falls,  the  Great  Falls,  and  the  Little  Falls,  according  to  the 
rates  heretofore  established ;  and  all  and  every  of  the  rights,  inter¬ 
ests,  privileges,  and  immunities,  heretofore  granted  to,  or  vested  in, 
the  said  proprietors  and  Potomac  Company,  are  hereby  confirmed 
and  established  to  them,  their  heirs  and  assigns,  and  succesors. 

“  3.  And  be  it  further  enacted ,  That  the  locks  erected  at  the  Great 
Falls  of  the  breadth  of  twelve  feet,  shall  be  as  available  in  law,  and 
shall  be  deemed  and  taken  of  the  same  force  and  virtue,  as  if  the 
same  were  of  the  breadth  of  fourteen  feet:  and  hereafter,  when  new 
[ocks  are  erected,  er  old  ones  repaired,  they  shall  be  erected  and  re¬ 


ft 


1S9 


paired  of  such  breadth  and  length,  and  of  such  material,  as  a  gene¬ 
ral  meeting  of  the  proprietors  shall  deem  most  conducive  to  the  pub¬ 
lic  interest  and  convenience ;  provided,  that  no  lock  shall  be  less 
than  eighty  feet  in  length,  and  twelve  feet  in  breadth.” 


An  act  allowing  further  time  to  the  Potomac  Company  for  complet¬ 
ing  the  navigation  of  the  Potomac  river ,  and  for  other  purposes . 
[Passed  November  Session,  1809.] 

“  Be  it  enacted  by  the  General  Assembly  of  Maryland,  That  the 
further  time  of  ten  years,  to  be  computed  from  the  expiration  of  the 
term  already  granted,  shall  be,  and  is  hereby,  allowed  the  Potomac 
Company  to  complete  the  navigation  of  the  Potomac  river.” 


An  act  further,  supplementary  to  the  act,  entitled  “  An  act  for  estab¬ 
lishing  a  Company  for  opening  and  extending  the  navigation  of  the 
river  Potomac .” — [ Passed  November  Session ,  1811.] 

Whereas  doubts  have  arisen  whether  the  act  of  Assembly,  entitled 
“a  further  supplement  to  the  act  for  establishing  a  company  for 
opening  and  extending  the  navigation  of  the  river  Potomac,”  pass¬ 
ed  at  November  session,  seventeen  hundred  and  ninety,  authori¬ 
zes  the  President  and  Directors  of  the  said  Company  to  condemn 
lands  on  the  branches  of  the  Potomac  river,  for  the  purpose  of 
making  canals  and  locks,  in  improving  the  navigation  of  such 
branches,  and  to  make  agreements  with  the  proprietors  of  lands 
whereby  the  water  may  be  used  for  navigation — 

Be  it  enacted,  That  the  President  and  Directors  shall  be,  and  they 
are  hereby,  authorized  and  empowered  to  exercise  the  same  powers, 
and  to  pursue  the  same  measures,  for  acquiring  and  condemning  lands 
for  the  purposes  aforesaid  on  the  branches  of  said  river,  and  under 
the  same  restrictions  as  are  given  and  directed  by  the  fourth,  eleventh 
and  thirteenth  sections  of  the  act  of  Assembly,  passed  at  November 
session,  seventeen  hundred  and  eighty  four,  entitled  “  An  act  for 
establishing  a  company  for  opening  and  extending  the  navigation 
of  the  river  Potomac,”  relative  to  the  acquiring  and  condemning 
lands  for  erecting  locks  and  making  canals  on  that  river ;  and  more¬ 
over,  the  said  President  and  Directors  of  the  said  Company  shall 
have  on  the  said  branches  power  to  agree  with  the  proprietors  of  the 
adjacent  lands  as  to  the  manner  of  erecting  dams  and  conducting  the 
water,  so  as  to  answer  the  purposes  of  navigation  in  such  places  as 
in  the  opinion  of  the  said  President  and  Directors  it  may  be  conve¬ 
niently  done  :  Provided,  nevertheless,  that  the  privileges  and  power 
by  this  act  conferred  shall  be  construed  to  extend  only  to  the  princi¬ 
pal  branches  or  streams  emptying  into  the  Potomac,  to  wit:  The 


190 


Monocacy,  Antietam,  and  Conococheague,  leaving  the  others  and 
smaller  ones  free  and  unoperated  upon  or  bound  by  this  act. 

And  whereas  persons  owning  land  on  the  said  branches,  may  be 
desirous  to  improve  the  same  for  the  purposes  of  manufacture,  the 
said  President  and  Directors  are  hereby  fully  authorized  and  empo>v- 
ered  to  grant  to  the  said  persons  the  privilege  of  using  the  surplus 
water  for  said  purposes  from  time  to  time  as  they  may  be  required  so 
to  do. 


Resolutions  passed  by  the  General  Assembly  of  the  State  of  Maryland , 
at  December  Session ,  1820. 

Resolved,  That  the  Governor,  by  and  with  the  advice  and  consent 
of  the  Council  of  this  State  shall  appoint  two  commissioners,  to 
meet  such  commissioners  as  may  be  appointed  on  the  part  of  the  State 
of  Virginia,  whose  duty  it  shall  be  to  examine  into  and  report  the 
state  of  the  navigation  of  the  Potomac  river  and  its  branches,  and  to 
inquire  into  and  report  the  situation  and  condition  of  the  affairs  of 
the  Potomac  Company,  the  amount  and  character  of  its  receipts  and 
expenditures,  and  to  advise  and  consult  with  the  commissioners  on 
the  part  of  the  State  of  Virginia,  as  to  the  measures  most  advisable 
to  be  recommended  to,  and  conjointly  adopted  by,  the  said  States, 
either  for  giving  aid  to  the  said  company  in  the  further  prosecution 
of  the  said  work,  or  for  the  more  effectual  improvement  of  the  navi¬ 
gation  of  the  said  river,  by  such  other  means  as  may  be  deemed  most 
expedient. 

Be  it  further  resolved ,  That  the  commissioners  aforesaid  shall  re¬ 
port  their  proceedings,  under  these  resolutions,  to  the  Governor  of 
the  State,  as  soon  as  practicable,  after  they  shall  have  executed  the 
duties  prescribed  to  them  by  these  resolutions. 

Be  it  further  resolved,  That  the  Governor  of  the  State  communi¬ 
cate  the  passage  of  these  resolutions,  as  soon  as  possible,  to  the  Go¬ 
vernor  of  Virginia,  with  a  request  that  it  may  be  laid  before  the 
General  Assembly  of  that  State,  as  soon  as  practicable. 

Be  it  further  resolved ,  That  the  Governor  be  requested  to  notify, 
within  convenient  time,  each  commissioner  of  his  appointment. 

Be  it  further  resolved,  That  each  commissioner,  appointed  under 
these  resolutions,  on  the  part  of  this  State,  shall  receive  four  dollars 
per  day,  for  the  time  he  shall  be  necessarily  employed  in  the  perform¬ 
ance  of  the  duties  prescribed  by  this  act,  to  be  certified  by  the  said 
commissioners,  and  that  their  chain  carriers  and  others  to  be  employed 
by  them,  shall  be  entitled  to  receive  such  compensation  as  the  com¬ 
missioners  shall  certify  to  be  just  and  reasonable ;  and  the  cost 
and  charges  hereby  authorized,  shall  be  paid  out  of  any  unappropri¬ 
ated  money  in  the  Treasury,  under  the  direction  of  the  Governor  and 
Council  of  this  State ;  and  the  said  commissioners  are  hereby  empow¬ 
ered  to  obtain,  in  such  manner  as  they  may  think  best,  boats,  if 
necessary,  for  the  purpose  of  more  effectually  carrying  the  provisions 
of  these  resolutions  into  operation,  to  be  paid  for  as  before  directed. 


1 9  i 


F. 

Extract  from  the  Proceedings  of  sundry  citizens  of  Baltimore ,  convened 
for  the  purpose  of  devising  the  most  efficient  means  of  improving  the 
intercourse  between  that  City  and  the  Western  States . 

Baltimore,  February  12,  1827. 

i  At  a  meeting  of  a  number  of  citizens  to  take  into  consideration  the 

best  means  of  restoring  to  the  City  of  Baltimore,  that  portion  of  the 
Western  Trade,  which  has  lately  been  diverted  from  it  by  the  intro¬ 
duction  of  Steam  navigation,  and  by  other  causes,  William  Patter- 
*  son,  Esq.  was  appointed  Chairman,  and  David  Winchester,  Secre¬ 
tary. 

Various  documents  and  statements,  illustrating  the  efficiency  of 
Rail  Roads,  for  the  conveying  of  articles  of  heavy  carriage,  at  a 
small  expense,  were  produced  and  examined  ;  and  the  superior  advan¬ 
tage  of  this  mode  of  transportation,  over  turnpike  roads  or  canals, 
in  many  situations  being,  according  to  those  statements,  satisfac¬ 
torily  shewn,  it  was,  on  motion,  Resolved ,  That  the  said  documents  be 
referred  to  a  Committee,  whose  duty  it  shall  he  to  examine  the  same, 
together  with  such  other  facts  and  experiments  as  they  may  be  able 
to  collect ;  and  when  prepared,  to  report  their  opinion  thereon,  and 
on  the  course  it  may  be  deemed  proper  for  this  meeting  to  pursue. 

Resolved ,  That  Philip  E.  Thomas,  Benjamin  C.  Howard,  George 
Brown,  Talbot  Jones,  Joseph  W.  Patterson,  Evan  Thomas,  and  John 
V.  L.  M’Mahon,  compose  the  said  Committee. 

Adjourned  to  meet  on  Monday  evening,  the  19th  instant. 

*  - 

At  a  meeting  held  pursuant  to  the  foregoing  adjournment,  Feb.  19. 
1827,  William  Patterson  Esq.  was  called  to  the  chair,  and  David 
Winchester  was  appointed  Secretary.  The  Committee*  produced 
the  report  from  which,  and  the  proceedings  thereon,  the  following 
paragraphs  are  extracted  : 

The  Committee  to  whom  was  referred  sundry  documents  and  state¬ 
ments,  illustrating  the  relative  or  comparative  advantages  of  Canals 
and  Rail-Roads,  for  connecting  the  trade  of  the  City  of  Baltimore 
with  the  Western  States,  having  carefully  examined  the  said  docu¬ 
ments  and  statements,  together  with  such  additional  facts  and  evi¬ 
dences  as  they  have  been  able  to  collect,  beg  leave  now  to  submit  the 
following  report : 


192 


“  In  conclusion,  the  Committee  beg  leave  to  refer  to  the  annexed  Ta¬ 
bles,  numbered  from  1  to  7,  in  which  they  have  arranged,  under  a 
condensed  form,  some  of  the  more  important  facts  and  statements  em¬ 
braced  in  this  report.  The  Committee  have  also  in  these  Tables 
contrasted  the  advantages,  which,  in  their  opinion,  would  be  likely 
to  accrue  to  the  City  of  Baltimore,  from  connecting  her  Trade  with 
the  Western  States,  by  intersecting  the  contemplated  Chesapeakeand 
Ohio  Canal  within  the  District  of  Columbia,  and  bv  A  DIRECT 
RAIL  ROAD  FROM  BALTIMORE  TO  SOME  ELIGIBLE 
POINT  ON  THE  OHIO  RIVER, 

All  which  is  respectfully  submitted. 

PHILIP  E.  THOMAS.,  Chairman  of  the  Com9  tee. 

The  report  being  read  and  considered,  was  unanimously  approved 
by  the  meeting.  Whereupon  it  was,  on  motion, 

Resolved ,  That  immediate  application  be  made  to  the  Legislature  of  «  * 
Maryland,  for  an  act  incorporating  a  joint  stock  company,  to  be 
styled  “The  Baltimore  and  Ohio  Rail  Way  Company,”  and  cloth¬ 
ing  such  company  with  all  the  powers  necessary  to  the  construction  of 
a  Rail  Road,  with  two  or  more  sets  of  rails,  from  the  city  of  Balti¬ 
more  to  the  Ohio  river. 

Resolved ,  That  the  capital  stock  of  said  company  shall  be  Five 
Millions  of  Dollars,  but  that  the  company  shall  be  incorporated,  and 
provision  shall  be  made  by  said  act  for  its  organization,  upon  the 
subscription  of  One  Million  of  Dollars  to  said  stock,  and  that  the 
said  company  shall  have  power  to  increase  the  capital  stock  thereof, 
so  far  as  may  be  necessary  to  effect  said  objects. 

Resolved,  That  it  is  expedient  and  propey,  in  said  act,  to  permit 
subscriptions  of  stock  to  the  same,  to  be  made  by  the  United  States, 
by  States,  Corporations  or  Individuals ;  and  to  provide  that  as  soon 
as  the  said  act  shall  have  been  passed  by  the  Legislature  of  Mary¬ 
land,  subscription  books  may  be  opened,  subscriptions  received,  the 
company  organized,  and  the  said  road  constructed,  so  far  as  it  may 
lie  within  the  limits  of  the  State  of  Maryland  ;  and  that  the  assent 
of  the  Legislatures  of  Pennsylvania  and  Virginia  to  the  said  act  shall 
be  obtained  as  speedily  as  possible,  but  shall  be  made  necessary,  only 
so  far  as,  jn  constructing  the  said  road,  it  shall  be  found  necessary  to 
pass  through  their  respective  States. 

Resolved,  That  a  Committee,  consisting  of  25  members,  be  appoint¬ 
ed  by  the  Chairman  of  this  meeting,  whose  duty  it  shall  be  to  pre¬ 
prefer  an  application  to  the  legislature  of  Maryland  for  such  an  act  of 
incorporation. 

The  following  Committee  was  then  appointed  to  carry  into  effect 
the  object  of  the  meeting,  to  wit : 


193 


Charles  Carroll,  of  Carrollton, 
William  Patterson, 

Isaac  M’Kim, 

Robert  Oliver, 

Charles  Ridgely,  of  Hampton. 
Thomas  Tennant, 

Alexander  Brown, 

John  M’Kim,  Jun. 

Talbot  Jones, 

James  Wilson, 

Thomas  Ellicott, 

George  Hoffman, 

William  Steuart, 


Philip  E.  Thomas, 
William  Lorman, 
George  Warner, 
Benj.  C.  Howard, 
Solomon  Etting, 

W.  W.  Taylor, 
Alexander  Fridge, 
James  L.  Hawkins, 
John  B.  Morris, 
Luke  Tiernan 
Alexander  M’Donald, 
Solomon  Birckhead. 


The  meeting  then  adjourned,  sine  die . 


WILLIAM  PATTERSON,  Chairman. 
David  Winchester,  Secretary . 


TABLE  No.  1. 


Estimated  difference  in  the  distance  between  connecting  the  city 
oF  Baltimore  with  the  western  trade,  by  a  continuous  Canal,  inter¬ 
secting  the  eastern  termination  of  the  proposed  “  Chesapeake  and 
Ohio  Canal,”  within  the  District  of  Columbia,  and  of  connecting 
Baltimore  with  this  trade  by  a  Rail  Way,  direct  from  that  city  to 
some  suitable  point  on  the  Ohio  river. 

The  United  States’  Engineers  report  the  length  of  the  “  Chesa¬ 
peake  and  Ohio  Canal,”  from  the  city  of  Washington  to  Pitts¬ 
burg,  on  the  Ohio  river,  to  be  -  -  -  34 1$  miles. 

Estimated  length  of  a  Canal  from  Baltimore,  to  in¬ 
tersect  the  “  Chesapeake  and  Ohio  Canal,”  at 
Washington,  -  -  -  -  -  48 £  miles. 


Whole  distance  of  a  Canal  by  this  route,  from  Balti¬ 
more  to  Pittsburg,  -  390  miles. 


23 


194 


Estimated  distance  of  a  Rail  Road,  from  the  city  of 
Baltimore  to  Wheeling,  or  some  other  suitable 
point  on  the  Ohio  River,  -  250  miles. 

Distance  saved  by  a  Rail  Road,  140  miles. 


TABLE  No.  2. 

Comparative  cost  of  constructing  a  Canal  communication  between 
the  city  of  Baltimore  and  the  Ohio  river,  by  the  proposed  route  of 
the  “  Chesapeake  and  Ohio  Canal,”  and  by  the  proposed  direct  Rail 
Road  communication  between  Baltimore  and  that  river. 

The  United  States’  Engineers  estimate  the  cost  of  the  proposed 
Canal  from  Washington  to  Pittsburg,  to  be  ($22, 375,427,) 
twenty-two  millions,  three  hundred  and  seventy  five  thousand, 
four  hundred  and  twenty-seven  dollars  ;  but  we  will  suppose  it 
could  he  made  for  one  half  of  this  sum,  or  -  $1  1,000,000  00 

To  which  should  be  added  the  cost  of  constructing 
a  continuous  Canal  from  the  city  of  Baltimore 
to  the  eastern  termination  of  the  M  Chesapeake 
and  Ohio  Canal,”  at  Washington,  that  being 
the  only  point  at  which  we  can  intersect  it,  -  $  1,000,000  00 


$12,000,000  OO 

The  highest  estimated  cost  of  a  Rail  Road  from 
Baltimore  to  the  Ohio  river,  calculating  the 
same  to  cost  $20,000  per  mile,  (and  this  is  be¬ 
lieved  to  be  a  very  high  estimate, )  would  be  -  $  5,000,000  00 

Amount  of  capital  saved  in  favor  of  a  Rail  Road,  $  7,000,000  00 


TABLE  No.  3. 

Estimated  difference  of  expense  on  transportation  for  tolls  only,  by 
the  proposed  canals  from  Baltimore  through  the  District  of  Colum¬ 
bia  to  Pittsburg,  and  by  a  direct  Rail-Road  route  from  Baltimore  to 
some  point  on  the  Ohio  river. 

The  United  States’  Engineers  estimate  the  cost  of  transportation, 
by  the  proposed  Chesapeake  and  Ohio  Canal,  at  the  rate  of  1  § 
cents  for  each  ton  per  mile — taking  the  whole  distance  then  from 
Baltimore  to  Pittsburg,  as  is  shown  in  Table  No.  1,  to  be  390 
miles;  the  tolls  for  conveying  a  ton  of  freight  from  Baltimore, 
the  whole  distance  along  this  canal  would  be  -  -  $5  85 


195 


Tolls  for  carrying«the  same  freight  along  the  proposed 
Rail  Road  at  the  same  rate  per  mile,  the  distance  being 
250  miles,  would  be . -  $3  75 


Amount  of  freight  saved  per  ton  in  favor  of  a  Rail-Road, 

at  the  same  charge  for  tolls,  would  be  -  -  -  §2  10 

In  order,  however,  to  show  the  actual  saving  by  the  Rail- 
Road,  it  is  necessary  to  remark,  that  the  proposed 
charge  along  it,  is  not  1£  cents  per  ton  each  mile,  as 
charged  on  the  canal,  but  one  cent  per  ton  each  mile, 
and  this  will  give  a  further  advantage  in  favor  of  the 
road  on  each  ton  of . -  §125 


Making  the  difference  per  ton  in  favor  of  the  Rail-Road, 

to  be  -  -  -  -  -  -  -  -  §3  35 


TABLE  No.  4. 

Estimate  of  the  income  which  the  proposed  Rail-Road  from  Balti¬ 
more  to  some  point  on  the  Ohio  river,  would  annually  yield,  comput¬ 
ing  the  freight  which  would  pass  upon  this  road  to  be  only  150,000 
tons,  from  West  to  East,  and  the  amount  that  would  pass  from  East 
to  West,  to  be  50,000  tons. 

150,000  tons  from  West  to  East,  at  1  cent  per  ton  per  mile,  being 
the  New  York  canal  price,  -  §375,000  00 

50,000  tons  from  East  to  West,  at  3  cents  per  ton 
per  mile,  being  the  New  York  canal  price  -  §375,000  00 

Total  amount  of  tolls,  §750,000  00 


TABLE  No.  5. 

Estimate  of  profits  to  the  holders  of  stock  in  the  proposed  Balti¬ 
more  and  Ohio  Rail-Road. 

Expense  of  constructing  the  proposed  road,  being 
estimated  at  §  20,000  per  mile,  and  the  distance 
being  assumed  to  be  250  miles,  would  make  the 
whole  cost  five  millions  of  dollars 


Six  per  cent,  interest  on  the  above  capital  invest¬ 
ed,  would  be . 

Income  from  tolls  as  is  shown  by  Table  No.  4 


Which  leaves  §450,000  00  for  repairs,  contingent 
expenses,  and  surplus  dividends  - 


§  5,000,000  00 


§300,000  00 
§750,000  00 


§450,000  00 


196 


TABLE  No.  6, 

Estimated  difference  of  the  time  it  would  take  for  conveying 
freight  from  Baltimore  to  Pittsburg,  by  the  proposed  Chesapeake 
and  Ohio  Canal,  between  those  places,  (through  the  District  of  Co¬ 
lumbia,)  and  by  a  direct  Rail  Road  from  Baltimore  to  some  point  on 
the  Ohio  river. 

The  United  States’  Engineers,  (page  38,)  estimate  the  time  it  will 
take  to  travel  with  loaded  boats  from  Washington  to  Pittsburg, 
to  be . 188  hours. 

The  distance  between  these  points  being  341  miles,  we 
have  only  to  add  the  same  rate  of  travelling  for  the 
additional  distance  from  Baltimore  to  Washington, 
say  48|  miles,  and  the  additional  time  will  be  -  26$  hours. 

Time  employed  in  passing  on  the  proposed  Canals, 
from  Baltimore  to  Pittsburg,  -  -  -  214$  hours. 

There  is  abundant  evidence  to  prove,  from  authentic 
documents  published,  that  the  rate  of  travelling  upon 
Rail  Roads,  with  the  locomotive  engines,  in  England, 

(and  this  has  been  sufficiently  shewn  to  be  the  cheap- 
,  est  means,)  is  with  heavy  loaded  wagons,  from  four 
miles  to  six  miles  and  even  eight  miles  per  hour ; 
assuming  however  the  slowest  rate,  and  the  passage 
will  be  made  from  Baltimore  to  the  Ohio  river,  say 
250  miles,  at  the  rate  of  4  miles  per  hour,  is  -  62$  hours. 

Time  saved  in  favor  of  the  Rail  Road,  each  trip,  152  hours. 


390  miles- 
250 


140  miles. 


812,000,000 

5,000,000 


TABLE  No.  7. 

Synopsis  of  the  6  preceding  Tables. 

TABLE  1. 

Distance  between  Baltimore  and  Pittsburg,  by  the  pro¬ 
posed  Chesapeake  and  Ohio  Canal,  - 
Distance  from  Baltimore  to  the  Ohio  river  by  the  pro¬ 
posed  Rail  Road, . 

Distance  saved  by  the  road 
table  2. 

Smallestestimated  cost  of  the  proposed  Chesapeake  and 

Ohio  Canal, . 

Highest  estimated  cost  of  the  contemplated  Rail  Road, 


Amount  of  capital  saved  in  favor  of  the  Road,  $7,000,000 


197 


TABLE  3. 

Cost  of  transporting ,  for  Tolls  only,  on  a  ton  of  freight 
from  Pittsburg  to  Baltimore,  upon  the  Chesapeake 
and  Ohio  Canal,  -  $5  85 

Cost  of  same  transportation  by  the  proposed  Rail  Road,  2  50 


Tolls  saved  on  each  ton,  by  the  Rail  Road,  $3  35 

tables  4  &  5. 

Annual  income  from  Tolls  upon  the  proposed  Rail  Road  $750,000 
6  per  cent,  interest  on  the  capital  invested,  -  -  300,000 


Annual  surplus  profits  to  be  appropriated  for  repairs 
and  extra  dividends,  - 

table  6. 

Time  employed  in  passing  a  Boat  from  Baltimore  to 
Pittsburg,  by  the  Chesapeake  and  Ohio  Canal,  - 
Time  to  pass  from  Baltimore  to  the  Ohio  river,  upon 
the  proposed  Rail  Road, . 

Time  saved  by  the  Road,  each  trip, 


i 

$450,000 


214j-  hours. 
62£  hours. 


152  hours. 


The  following  gentlemen  compose  the  Board  of  President  and  Di¬ 
rectors  of  the  Baltimore  and  Ohio  Rail  Road  Company. 


Philip  E.  Thomas,  President 
Charles  Carroll,  of  Carollton 
William  Patterson 
Robert  Oliver 
Alexander  Brown 
George  Hoffman 
Alexander  Fridge 


William  Lorman 
John  B.  Morris 
Isaac  McKim 
Patrick  Macauly 
William  Steuart 
Solomon  Etting 
Talbot  Jones. 


Extract  from  the  proceedings  of  the  Chesapeake  and  Ohio  Canal  Con¬ 
vention  held  at  the  city  of  Washington  on  the  6th  of  December ,  1826. 

Among  others  who  appeared  as  Delegates  to  the  said  Convention, 
were  the  following  gentlemen  : 

From  Baltimore  dty — Present,  Solomon  Etting,  Benjamin  C* 
Howard,  William  Lorman,  Isaac  McKim,  Joseph  W.  Patterson,  and 
Philip  E.  Thomas. 

The  following  gentlemen,  also  appointed  Delegates  to  the  Conven¬ 
tion  by  the  city  of  Baltimore,  were  absent :  Thomas  Ellicott,  Roger 
B.  Taney,  'Luke  Tiernan. 

The  Central  Committee  having  made  their  report,  recommending 
the  adoption  of  certain  resolutions,  and  the  first  of  the  said  resolutions 
being  under  consideration,  to  wit : 


198 


Resolved,  That  it  will  be  expedient  to  obtain  such  an  amendment 
of  the  charter  of  the  Chesapeake  and  Ohio  Canal  Company  as  shall 
authorize  the  company  to  terminate,  if  they  deem  proper,  the  eas¬ 
tern  section  of  the  said  canal  at  or  near  the  town  of  Cumberland ; 
and  to  extend,  by  any  route  therefrom,  the  western  section  of  the  said 
canal  across  the  Alleghany  to  Pittsburg,  or  to  substitute  therefor  a 
railway ;  and  in  the  event  that  such  a  change  shall  be  deemed  expedient 
in  the  route  now  prescribed  by  the  charter,  to  defer  the  extension  of 
a  canal  along  the  Potomac  from  Cumberland  to  the  mouth  of  Savage, 
and  to  reduce  the  dimensions  thereof  to  a  breadth  less  than  that  now 
required  : 

Mr.  Kennedy  moved  to  strike  out  the  words  “or  to  substitute 
therefor  a  railway.” 

Mr.  Key  moved  to  add,  “  or  such  other  mode  of  transportation  as 
they  may  find  expedient.” 

Mr.  Kennedy’s  motion  was  negatived. 

The  resolution  was  adopted,  by  adding  to  the  resolution  of  the 
Central  Committee,  after  the  word  “railway,”  “or  turnpike  road 
on  that  portion  of  the  route,  or  any  part  thereof,  designated  in  the 
report  of  the  Board  of  Internal  Improvement,  of  the  23d  of  October, 
1826,  as  the  middle  section,  or  on  that  part  of  the  route  by  Savage, 
which  corresponds  therewith.” 

The  second  resolution  recommended  by  the  Central  Committee,  in 
the  following  words,  was  then  taken  up  : 

Resolved ,  That  it  will  be  expedient  to  address  a  memorial  to  the 
Congress  of  the  United  States,  requesting  a  subscription  to  the  stock 
of  the  said  canal,  and  a  like  memorial  to  the  Legislatures  of  Virginia, 
Maryland,  and  Pennsylvania;  and  that  an  application  be  made  to 
the  cities  of  Washington,  Georgetown,  and  Alexandria,  to  aid,  by  a 
similar  Subscription,  the  stock  of  the  said  company. 

On  motion  of  Mr.  Etting,  the  word  “Baltimore”  was  added,  after 
the  word  “  Alexandria,”  in  the  foregoing  resolution. 

The  foregoing  resolutions  were,  it  is  believed,  adopted  unanimously 
by  the  Convention. 


199 


AN  ACT  TO  INCORPORATE  THE  BALTIMORE  AND  OHIO  RAIL  ROAD 

COMPANY. 

[PASSED  FEBRUARY  28,  1827.] 

1.  Be  it  enacted  by  the  General  Assembly  of  Maryland .  That 
Isaac  M‘Kim,  Thomas  Ellicott,  Joseph  W.  Patterson,  John  M4Kim, 
Junior,  William  Stewart,  Talbot  Jones,  Roswell  L.  Colt,  George 
Brown,  and  Evan  Thomas,  be  and  they  are  hereby  appointed  com¬ 
missioners,  under  the  direction  of  a  majority  of  whom  subscriptions 
may  be  received  to  the  capital  stock  of  the  Baltimore  and  Ohio 
Rail-Road  Company,  hereby  incorporated ;  and  they,  or  a  majority 
of  them,  may  cause  books  to  be  opened  at  such  times  and  places  as 
they  may  direct,  for  the  purpose  of  receiving  subscriptions  to  the 
capital  stock  of  said  company,  after  having  given  such  notice 
of  the  times  and  places  of  opening  the  same  as  they  may  deem  pro¬ 
per  ;  and  that,  upon  the  first  opening  of  said  books,  they  shall  be 
kept  open  for  at  least  ten  successive  days,  from  10  o’clock,  A.  M. 
until  2  o’clock,  P.  M.,  and  if,  at  the  expiration  of  that  period,  such 
a  subscription  to  the  capital  stock  of  said  company  as  is  necessary 
to  its  incorporation,  shall  not  have  been  obtained,  the  said  commis¬ 
sioners,  or  a  majority  of  them,  may  cause  the  said  books  to  be  open¬ 
ed,  from  time  to  time,  after  the  expiration  of  the  said  ten  days,  for 
the  space  of  twelve  months  thereafter,  or  until  the  sum  necessary  to 
the  incorporation  of  the  company  shall  be  subscribed,  if  sooner  sub¬ 
scribed  ;  and,  if  any  of  the  said  commissioners  shall  die,  resign,  or 
refuse  to  act,  during  the  continuance  of  the  duties  devolved  upon 
them  by  this  act,  another  may  be  appointed  in  his  stead,  by  the  re¬ 
maining  commissioners,  or  a  majority  of  them. 

2.  And  be  it  enacted ,  That  the  capital  stock  of  the  said  Baltimore 
and  Ohio  Rail  Road  Company  shall  be  three  millions  of  dollars,  in 
shares  of  one  hundred  dollars  each,  of  which  ten  thousand  shares 
shall  be  reserved  for  subscription  by  the  State  of  Maryland,  and  five 
thousand  for  the  City  of  Baltimore,  for  the  space  of  twelve  months 
after  the  passage  of  this  act  by  the  Legislature  of  Maryland,  and 
the  remaining  fifteen  thousand  shares  may  be  subscribed  for  by  any 
other  corporation,  or  by  individuals  ;  and  that  as  soon  as  ten  thou¬ 
sand  shares  of  the  said  capital  stock  shall  be  subscribed,  the  subscri¬ 
bers  of  the  said  stock,  their  successors,  and  assigns,  shall  be,  and 
they  are  hereby  declared  to  be,  incorporated  into  a  company,  by  the 
name  of  The  Baltimore  and  Ohio  Rail  Road  Company,  and  by  that 
name  shall  be  capable,  in  law,  of  purchasing,  holding,  selling,  leas¬ 
ing,  and  conveying,  estates,  real,  personal,  and  mixed,  so  far  as  shall 
be  necessary  for  the  purposes  hereinafter  mentioned,  and  no  further; 
and  shall  have  perpetual  succession,  and  by  said  corporate  name  may 
sue  and  be  sued,  and  may  have  and  use  a  common  seal,  which  they 
shall  have  power  to  alter  or  renew  at  their  pleasure,  and  shall  have. 


200 


<* 


enjoy,  and  may  exercise,  all  the  powers,  rights,  and  privileges, which 
other  corporate  bodies  may  lawfully  do,  for  the  purposes  mentioned 
in  this  act. 

3.  And  be  it  enacted ,  That  if  more  than  fifteen  thousand  shares 
shall  be  subscribed  to  the  capital  stock  of  said  company,  not  reserv¬ 
ed  to  the  State  of  Maryland,  or  to  the  City  of  Baltimore,  the  said 
commissioners,  or  a  majority  of  them,  shall  reduce  the  subscription 
to  fifteen  thousand  shares,  by  striking  off  from  the  largest  number  of 
shares  in  succession,  until  the  subscriptions  are  reduced  to  fifteen 
thousand  shares,  or  all  the  subscriptions  to  one  share ;  and  if  there 
be  still  an  excess,  then  lots  shall  be  drawn  by  the  commissioners,  to 
determine  who  are  to  be  excluded. 

4.  And  be  it  enacted ,  That  upon  every  such  subscription  there 
shall  be  paid,  at  the  time  of  subscribing,  to  the  said  commissioners, 
or  to  their  agents,  appointed  to  receive  such  subscriptions,  the  sum 
of  one  dollar  on  every  share  subscribed,  and  the  residue  thereof  shall 
be  paid  in  such  instalments,  and  at  such  times,  as  it  may  be  required 
by  the  president  and  directors  of  said  company  :  Provided ,  That  not 
more  than  one-third  of  the  subscription  be  demanded  in  any  one  year 
from  the  commencement  of  the  work,  nor  any  payment  demanded 
until  at  least  sixty  days’  public  notice  of  such  demand  shall  have 
been  given  by  the  said  president  and  directors ;  and  if  any  subscriber 
shall  fail  or  neglect  to  pay  any  instalment,  or  part  of  said  subscrip¬ 
tion,  thus  demanded,  for  the  space  of  sixty  days  next  after  the  time 
the  same  shall  be  due  and  payable,  the  stock  on  which  it  is  demand¬ 
ed  shall  be  forfeited  to  the  company,  and  may  be  sold  by  the  said 
president  and  directors,  for  the  benefit  of  the  company  ;  but  the  pre¬ 
sident  and  directors  may  remit  any  such  forfeiture  on  such  terms  as 
they  shall  deem  proper. 

5.  And  be  it  enacted ,  That  if  the  subscription  herein  made  neces¬ 
sary  to  the  incorporation  of  the  said  company,  shall  not  be  obtained 
within  twelve  months  after  the  first  opening  of  the  subscription  books 
by  the  said  commissioners,  this  act,  and  all  the  subscriptions  under 
it,  shall  be  null  and  void ;  and  the  said  commissioners,  after  dischar¬ 
ging  the  expenses  of  opening  the  books,  shall  return  the  residue  of 
the  money  paid  in  upon  such  subscriptions,  to  the  several  subscribers, 
in  proper  proportions  to  the  sums  respectively  paid  in  by  them. 

6.  And  be  it  enacted ,  That,  at  the  expiration  of  the  ten  days  for 
which  the  books  are  first  opened,  if  ten  thousand  shares  of  said  ca¬ 
pital  stock  shall  have  been  subscribed,  or  if  not,  as  soon  thereafter  as 
the  same  shall  be  subscribed,  if  within  one  year  after  the  first  open¬ 
ing  of  the  books,  the  said  commissioners,  or  a  majority  of  them,  shall 
call  a  general  meeting  of  the  subscribers  at  such  time  and  place  as 
they  may  appoint,  and  shall  give  at  least  twenty  days’  public  notice 
thereof ;  and  at  such  meeting  the  said  commissioners  shall  lay  the 
subscription  books  before  the  subscribers  then  and  there  present,  and 
thereupon  the  said  subscribers,  or  a  majority  of  them,  shall  elect 
twelve  directors,  by  ballot,  to  manage  the  affairs  of  said  company ; 
and  these  twelve  directors,  or  a  majority  of  them,  shall  have  the 


-power  of  electing  a  president  of  caid  company,  either  from  among 
the  directors  or  others,  and  of  allowing  him  such  compensation  for 
his  services  as  they  may  deem  proper ;  and  that,  in  said  election, 
and  on  all  other  occasions  wherein  a  vote  of  the  stockholders  of  said 
company  is  to  be  taken,  each  stockholder  shall  be  allowed  one  vote 
"for  every  share  owned  by  it,  him,  or  her,  and  every  stockholder  may 
depute  any  other  person  to  vote  and  act  for  it,  him,  or  her,  as  its,  his, 
or  her  proxy,  and  the  commissioners  aforesaid,  or  any  three  or  more 
of  them,  shall  be  judges  of  the  said  first  flection  of  directors. 

7.  And  be  it  enacted ,  That,  to  continue  the  succession  of  the  pre¬ 
sident  and  directors  of  said  company,  twelve  directors  shall  be  cho¬ 
sen  annually,  on  the  second  Monday  of  October  in  every  year,  in  the 
City  of  Baltimore,  by  the  stockholders  of  said  company,  and  that  the 
State  of  Maryland  and  the  City  of  Baltimore  may  each  appoint  one 
additional  director  of  said  company  for  every  twenty-five  hundred 
shares  of  stock  of  said  company  by  them  respectively  owned  at  the 
time  of  such  election,  but  shall  not  be  permitted  to  vote  upon  their 
stock  in  the  election  of  the  directors  by  the  stockholders,  in  general 
meetings  and  that  the  directors  of  said  company,  or  a  majority  of 
them,  shall  have  power  to  appoint  judges  of  all  elections,  and  to  elect 
a  president  of  said  company,  either  from  amongst  the  directors,  or 
others,  and  to  allow  him  such  compensation  for  his  services  as  they 
may  deem  proper ;  and,  if  any  vacancy  shall  occur  by  death,  resig¬ 
nation,  or  refusal  to  act,  of  any  president  or  director,  before  the 
year  for  which  he  was  elected  has  expired,  a  peison  to  fill  such  va¬ 
cant  place,  for  the  residue  of  the  year,  may  be  appointed  by  the  pre¬ 
sident  and  directors  of  said  company,  or  a  majority  of  them  ;  and 
that  the  president  and  directors  of  the  company  shall  hold  and  exer¬ 
cise  their  offices  until  a  new  election  of  president  and  directors;  and 
that  all  elections  which  are,  by  this  act,  or  the  by-laws  of  said  com¬ 
pany,  to  be  made  on  a  particular  day,  or  at  a  particular  time,  if  not 
made  on  such  day,  or  at  such  time,  may  be  made  at  any  time  within 
thirty  days  thereafter. 

8.  And  be  it  enacted ,  That  a  general  meeting  of  the  stockholders 
of  said  company  shall  be  held  annually,  at  the  time  and  place  appointed, 
for  the  election  of  the  president  and  directors  of  said  company  ;  that 
they  may  be  called  at  any  time  during  the  interval  between  said  an¬ 
nual  meetings,  by  the  president  and  directors,  or  a  majority  of  them, 
or  by  the  stockholders  owning  at  least  one  fourth  of  the  whole  stock 
subscribed,  upon  giving  thirty  days’  public  notice  of  the  time  and 
place  of  holding  the  same ;  and  when  any  such  meetings  are  called  by 
the  stockholders,  such  notice  shall  specify  the  particular  object  of  the 
call ;  and  if  at  any  such  called  meetings  a  majority  (in  value)  of  the 
stockholders  of  said  company,  are  not  present  in  person  or  by  proxy, 
such  meetings  shall  be  adjourned  from  day  to  day,  without  transact¬ 
ing  any  business,  for  any  time  not  exceeding  three  days,  and  if  with¬ 
in  the  said  three  days,  stockholders  having  a  majority  (in  value)  of 
the  stock  subscribed  do  not  thus  attend,  such  meeting  shall  be  dis¬ 
solved. 


24 


202 


9.  And  be  it  enacted ,  That  at  the  regular  annual  meetings  of 
the  stockholders  of  said  company,  it  shall  be  the  duty  of  the  president 
and  directors,  in  office  for  the  preceding  year,  to  exhibit  a  clear  and 
distinct  statement  of  the  affairs  of  the  company ;  that  at  any  called 
meetings  of  the  stockholders,  a  majority  of  those  present  may  require 
similar  statements  from  the  president  and  directors,  whose  duty  it 
shall  be  to  furnish  them  when  thus  required,  and  that  at  all  general 
meetings  of  the  stockholders,  a  majority  (in  value)  of  all  the  stock¬ 
holders  in  said  company  may  remove  from  office  any  president,  or 
any  of  the  directors  of  said  company,  and  may  appoint  others  in 
their  stead. 

10.  And  be  it  enacted,  That  every  president  and  director  of  said 
company,  before  he  acts  as  such,  shall  swear,  or  affirm,  as  the  case 
may  be,  that  he  will  well  and  truly  discharge  the  duties  of  his  said 
office,  to  the  best  of  his  skill  and  judgment. 

11.  And  be  it  enacted ,  That  if  any  of  the  said  fifteen  thousand 
shares  of  the  capital  stock  of  said  company,  not  reserved  to  the  city 
of  Baltimore,  or  to  the  StatS  of  Maryland,  shall  remain  unsubscrib¬ 
ed  until  the  organization  of  the  said  company,  or  if  the.shares  of  said 
capital  stock  herein  before  reserved  to  the  said  State  or  City,  or  any 
part  of  them,  shall  be  subscribed  by  said  State  or  City  respectively, 
during  the  time  for  which  such  stock  is  reserved  for  them,  in  either 
case  the  president  and  directors  of  the  said  company,  or  a  majority 
of  them,  shall  have  power  to  open  books,  and  to  receive  subscriptions 
to  any  of  the  capital  stock  of  said  company  which  may  thus  remain 
unsubscribed  for,  or  to  sell  or  dispose  of  such  unsubscribed  stock  for 
the  benefit  of  the  company,  for  any  sum  not  under  its  par  value;  and 
the  purchasers  or  subscribers  of  such  stock  shall  have  all  the  rights, 
powers,  and  privileges,  of  original  subscribers,  and  shall  be  subject 
to  the  same  regulations. 

12.  And  be  it  enacted,  That  the  said  president  and  directors,  or  a  ma¬ 
jority  of  them,  may  appoint  all  such  officers,  engineers,  agents,  or 
servants  whatsoever,  as  they  may  deem  necessary  for  the  transaction 
of  the  business  of  the  company,  and  may  remove  any  of  them  at  their 
pleasure ;  that  they,  or  a  majority  of  them,  shall  have  pow  er  to  de¬ 
termine,  by  contract,  the  compensation  of  all  the  engineers,  officers, 
agents,  or  servants,  in  the  employ  of  said  company,  and  to  determine, 
by  their  by-laws,  the  manner  of  adjusting  and  settling  all  accounts 
against  the  company,  and  also  the  manner  and  evidence  of  transfers 
of  stock  in  said  company;  and  that  they,  or  a  majority  of  them, shall 
have  power  to  pass  all  by-laws  which  they  may  deem  necessary  or 
proper  for  exercising  all  the  powers  vested  in  the  company  hereby 
incorporated,  and  for  carrying  the  objects  of  this  act  into  effect — 
Provided ,  only ,  That  such  by-laws  shail  not  be  contrary  to  the  laws 
of  the  United  States,  or  the  laws  of  any  of  the  States  assenting  to 
this  act,  or  any  of  the  provisions  of  this  act. 

13.  And  be  it  enacted,  That  if  the  capital  stock  of  said  company 
shall  be  deemed  insufficient  for  the  purposes  of  this  act,  it  shall  and 
may  be  lawful  for  the  president  and  directors  of  said  company,  or  a 


203 


majority  of  them,  from  time  to  time,  to  increase  the  said  capital 
stock,  by  the  addition  of  as  many  shares  as  they  may  deem  necessa¬ 
ry,  for  which  they  may  at  their  option  cause  subscriptions  to  be  re¬ 
ceived  in  the  manner  prescribed  by  them,  or  may  sell  the  same  for 
the  benefit  of  the  company,  for  any  sum  not  under  their  par  value  ; 
and  that  they,  or  a  majority  of  them,  shall  have  power  to  borrow 
money  for  the  objects  of  this  act,  to  issue  certificates  or  other  evi¬ 
dences  of  such  loans,  and  to  pledge  the  property  of  the  company  for 
the  payment  of  the  same,  and  its  interest. 

14.  And  be  it  enacted ,  That  the  president  and  directors  of  said 
company  shall  be  and  they  are  hereby  invested  with  all  the  rights  and 
powers  necessary  to  the  construction  and  repair  of  a  rail  road  from 
the  city  of  Baltimore,  to  some  suitable  point  .on  the  Ohio  river  to  be 
by  them  determined,  not  exceeding  sixty-six  feet  wide,  with  as  many 
sets  of  tracts  as  the  said  president  and  directors,  or  a  majority 
of  them,  may  deem  necessary ;  and  they,  or  a  majority  of  them, 
may  cause  to  be  made,  or  contract  with  others  for  making,  said  rail 
road,  or  any  part  of  it ;  and  they,  their  agents,  or  those  with  whom 
they  may  contract  for  making  any  part  of  the  same,  or  their  agents, 
may  enter  upon  and  use,  and  excavate,  any  land  which  may  be  want¬ 
ed  for  the  site  of  said  road,  or  the  erection  of  warehouses,  or  other- 
works  necessary  to  said  road,  or  for  any  other  purpose  necessary  or 
useful  in  the  construction  or  repair  of  said  road,  or  its  works,  and 
that  they  may  build  bridges,  may  fix  scales  and  weights,  may  lay 
rails,  may  take  and  use  any  earth,  timber,  gravel,  stone,  or  other  ma¬ 
terials,  which  may  be  wanted  for  the  construction  or  repair  of  any 
part  of  said  road,  or  any  of  its  works ;  and  may  make  and  construct 
all  works  whatsoever,  which  may  be  necessary  and  expedient,  in  or¬ 
der  to  the  proper  completion  of  said  road ;  and  that  they,  or  a  majo¬ 
rity  of  them,  may  make,  or  cause  to  be  made,  lateral  rail  roads,  in 
any  direction  whatsoever,  in  connexion  with  said  rail  road  from  the 
city  of  Baltimore  to  the  Ohio  river,  and  in  the  construction  of  the 
same,  or  their  works,  shall  have,  possess,  and  may  exercise,  all  the 
rights  and  powers  hereby  given  to  them,  in  order  to  the  construc¬ 
tion  or  repair  of  the  said  rail  road  from  the  city  of  Baltimore  to  the 
Ohio  river. 

15.  And  be  it  enacted ,  That  the  president  and  directors  of  said 
company,  or  a  majority  of  them,  or  any  person  or  persons  authorized 
by  a  majority  of  them,  may  agree  with  the  owner  or  owners  of  any 
land,  earth,  timber,  gravel,  stone,  or  other  materials,  or  any  im¬ 
provements  which  may  be  wanted  for  the  construction  or  repair  of 
any  of  said  roads,  or  of  any  of  their  works,  for  the  purchase  or  use 
and  occupation  of  the  same,  and  if  they  cannot  agree,  or  if  the  own¬ 
er  or  owners,  or  any  of  them,  he  a  feme  covert ,  under  age,  non  com¬ 
pos  mentis ,  or  out  of  the  county  in  which  the  property  wanted  may  lie, 
when  such  land  or  materials#shall  be  wanted,  application  may  be  made 
to  any  justice  of  the  peace  of  such  county,  who  shall  thereupon  issue  his 
warrant,  under  hand  and  seal,  directed  to  the  sheriff  of  said  county, 
requiring  him  to  summon  a  jury  of  twenty  inhabitants  of  said  coun- 


204 


ty,  not  related  nor  in  anywise  interested,  to  meet  on  the  land,  or  near 
to  the  other  property  or  materials  to  be  valued,  on  a  day  named  in 
said  warrant,  not  less  than  ten  nor  more  than  twenty  days  after  the 
issuing  of  the  same,  and  if  at  said  time  and  place  any  of  said  jurors 
summoned  do  not  attend,  the  said  sheriff  sha-1  immediately  summon 
as  many  jurors  as  may  he  necessary  with  the  jurors  in  attendance,  to 
furnish  a  pannel  of  twenty  jurors  in  attendance,  and  from  them  each 
party,  or  its,  his,  her,  or  their  agent,  if  either  be  not  present  in 
person  or  by  agent,  the  sheriff,  for  him,  her,  it,  or  them,  may  strike 
off  four  jurors,  and  the  remaining  twelve  shall  act  as  the  jury  of  in¬ 
quest  of  damages  ;  and,  before  they  act  as  such,  the  said  sheriff  shall 
administer  to  each  of  them  an  oath,  or  affirmation,  as  the  case  may 
be,  that  he  will  justly  and  impartially  value  the  damages  which  the 
owner  or  owners  will  sustain  by  the  use  or  occupation  of  the  same, 
required  by  the  company  ;  and  the  jury,  in  estimating  such  damages, 
shall  take  into  the  estimate  the  benefit  resulting  to  the  said  owner  or 
owners  from  c.onducting  such  rail  road  through,  along,  or  near,  to 
the  property  of  said  owner  or  owners,  hut  only  in  extinguishment  of 
the  claim  for  damages  ;  and  the  said  jury  shall  reduce  their  inquisi¬ 
tion  to  writing,  and  shall  sign  and  seal  the  same,  and  it  shall  then  bt 
returned,  by  said  sheriff,  to  the  clerk  or  prothonotary  of  his  county, 
as  the -case  may  be,  and  by  such  clerk  or  prothonotary  filed  in  his 
court,  and  shall  be  confirmed  by.  said  court  at  its  next  session,  if  no 
sufficient  cause  to  the  contrary  be  showrn  ;  and,  when  confirmed, shall 
he  recorded  by  said  clerk  or  prothonotary,  at  the  expense  of  said 
company,  hut  if  set  aside,  the  said  court  may  direct  another  inquisi¬ 
tion  to  he  taken,  in  the  manner  above  prescribed  $  and  such  inquisi¬ 
tion  shall  describe  the  property  taken,  or  the  bounds  of  the  land  con-' 
demned,  and  the  quantity  orfduration  of  the  interest  in  the  same,  va¬ 
lued  for  the  company,  and  such  valuation,  when  paid  or  tendered  to 
the  owner  or  owners  of  said  property,  or  his,  her,  or  their  legal  re¬ 
presentatives,  shall  entitle  the  said  company  to  the  estate  and  inter¬ 
est  in  the  same,  thus  valued,  as  fully  as  if  it  had  been  conveyed  by 
the  owner  or  owners  of  the  same  ;  and  the  valuation,  if  not  received 
when  tendered,  may  at  anytime  thereafter  be  received  from  the  com¬ 
pany,  without  costs,  by  the  said  owner  or  owners,  or  his,  her,  or  their 
legal  representative  or  representatives. 

16.  Jind  be  it  enacted ,  That  wherever,  in  the  construction  of  said 
road  or  roads,  it  shall  be  necessary  to  cross  or  intersect  any  estab¬ 
lished  road  or  way,  it  shall  be  the  duty  of  the  president  and  directors 
of  said  company  so  to  construct  the  said  road  across  such  establish¬ 
ed  road  or  way,  as  not  to  impede  the  passage  or  transportation  of 
persons  or  property  along  the  same ;  or  wffiere  it  shall  be  necessary 
to  pass  through  the  land  of  any  individual,  it  shall  also  he  their  duty 
to  provide  for  such  individual  proper  wagon-ways  across  said  road 
or  roads,  from  one  part  of  his  land  to  thp  other. 

17.  And  be  it  enacted ,  That  w  hensoever  it  shall  he  necessary  for 
said  company  to  have,  use,  or  occupy,  any  lands,  materials,  or  other 
property,  in  order  to  the  construction  or  repair  of  any  part  of  said 


^05 

road  or  roads,  or  their  works  or  necessary  buildings,  the  president 
and  directors  of  said  company,  or  their  agents,  or  those  contracting 
with  them  for  making  or  repairing  the  same,  may  immediately  take 
and  use  the  same,  (they  having  first  caused  the  property  wanted  to  be 
viewed  by  a  jury,  formed  in  the  manner  herein  before  prescribed)  in 
those  cases  where  the  property  is  to  be  changed  or  altered  by  admix¬ 
ture  with  other  substances  before  such  alteration  is  made,  and  that  it 
shall  not  be  necessary,  after  such  view,  in  order  to  the  use  or  occu¬ 
pation  of  the  same,  to  wait  the  issue  of  the  proceedings  upon  such 
view  ;  and  the  inquest  of  the  jury,  after  confirmation  and  after  pay¬ 
ment  or  tender  of  the  valuation,  shall  be  a  bar  to  all  actions  for  ta¬ 
king  or  using  such  property,  whether  commenced  before  or  after  such 
confirmation,  or  the  payment  of  said  valuation. 

1 8.  And  be  it  enacted ,  That  the  said  president  and  directors,  or 
a  majority  of  them,  shall  have  power  to  purchase,  with  the  funds 
of  the  said  company,  and  place  on  any  rail  road  constructed  by  them 
under  this  act,  all  machines,  wagons,  vehicles,  or  carriages  of  any 
description  whatsoever,  which  they  may  <leem  necessary  or  proper 
for  the  purposes  of  transportation  on  said  road,  and  they  shall  have  pow¬ 
er  to  charge  for  tolls  upon  (and  the  transportation  of  persons)  goods, 
produce,  merchandise,  or  property  of  any  kind  whatsoever,  trans¬ 
ported  by  them  along  said  rail  way  from  the  city  of  Baltimore  to  the 
Ohio  river,  any  sum  not  exceeding  the  following  rates,  viz  :  On  all 
goods,  produce,  merchandise,  or  property  of  any  description  whatso¬ 
ever,  transported  by  them  from  west  to  east,  not  exceeding  one  cent 
a  ton  per  mile,  for  toll,  and  three  cents  a  ton  per  mile  for  transpor¬ 
tation  ;  on  all  goods,  produce,  merchandise,  or  property  of  any  de¬ 
scription  whatsoever,  transported  by  them  from  east  to  west,  not  ex¬ 
ceeding  three  cents  a  ton  per  mile  for  tolls,  and  three  cents  a  ton  per 
mile  for  transportation,  and  for  the  transportation  of  passengers  not 
exceeding  three  cents  per  mile  for  each  passenger  ;  and  it  shall  not  be 
lawful  for  any  other  company,  or  any  person  or  persons  whatsoever, 
to  travel  upon  or  use  any  of  the  roads  of  said  company,  or  to  trans¬ 
port  persons,  merchandise,  produce,  or  property  of  any  description 
whatsoever,  along  said  roads,  or  any  of  them,  without  the  license  or 
permission  of  the  president  and  directors  of  said  company;  and  that 
the  said  road  or  roads,  with  all  their  works,  improvements  and  pro¬ 
fits,  and  all  the  machinery  of  transportation  used  on  said  road,  are 
hereby  vested  in  the  said  company,  incorporated  by  this  act,  and 
their  successors,  forever ;  and  the  shares  of  the  capital  stock  of  the 
said  company  shall  be  deemed  and  considered  personal  estate,  and 
shall  he  exempt  from  the  imposition  of  any  tax  or  burthen  by  tho 
btates  assenting  to  this  law. 

19.  And  be  it  enacted ,  That  the  said  president  and  directors  shall 
annually,  or  semi-annually,  declare  and  make  such  dividend  as  they 
may  deem  proper,  of  the  nett  profits  arising  from  the  resources  of 
the  said  company,  after  deducting  the  necessary  current  and  pro¬ 
bable  contingent  expenses;  and  that  they  shall  divide  the  same 
amongst  the  proprietors  of  the  stock  of  said  company?  in  proper  pro¬ 
portions  to  their  respective  shares. 


20.  And  be  it  enaeted ,  That  if  any  person  or  persons  shall  wilful¬ 
ly,  by  any  means  whatsoever,  injure,  or  impair,  or  destroy,  any  part 
of  any  rail  road,  constructed  by  said  company  under  this  act,  or  any 
of  their  necessary  works,  buildings,  carriages,  vehicles  or  machines, 
of  said  company,  such  person  or  persons,  so  offending,  shall,  each  of 
them,  for  every  such  offence,  forfeit  and  pay  to  the  said  company,  the 
sum  of  five  hundred  dollars,  which  may  be  recovered  in  the  name  of 
said  company,  by  an  action  of  debt,  in  the  county  court  of  the  county 
wherein  the  offence  shall  be  committed,  and  shall  also  be  subject  to 
indictment  in  said  court,  and  upon  conviction  of  such  offence,  shall 
be  punished  by  fine  and  imprisonment,  in  the  discretion  of  the  court. 

21.  And  be  it  enacted,  That  as  soon  as  this  act  shall  have  been 
passed  by  the  legislature  of  Maryland,  books  may  be  opened,  sub¬ 
scriptions  received,  and  the  said  company  organized,  and  that  when 
organized,  the  said  company,  and  the  President  and  Directors  of  the 
same,  shall  have  all  the  powers,  rights  and  privileges,  granted  by 
this  act,  and  shall  be  subject  to  all  its  regulations  in  constructing  or 
repairing  any  of  the  said  rail  roads,  or  other  necessary  works  or 
buildings,  which  may?  or  can  be  constructed  within  the  limits  of  the 
State  of  Maryland,  and  in  transporting  persons,  goods,  merchandise, 
or  property  of  any  description,  along  any  of  said  roads,  and  that  the 
provisions  of  this  act  shall  be  wholly  in  force,  as  to  all  the  property 
of  the  company,  which  may  be  situated  or  may  be  within  the  State 
of  Maryland,  and  which  said  company  is  permitted  to  hold  under 
this  act. 

22.  And  be  it  enacted ,  That  if  said  road  shall  not  be  commenced 
in  two  years  from  the  passage  of  this  act,  and  shall  not  be  finished 
within  this  State,  in  ten  years  from  the  time  of  the  commencement 
thereof,  then  this  act  shall  be  null  and  void. 

23.  And  be  it  enacted ,  That  full  right  and  privilege  is  hereby 
reserved  to  the  citizens  of  this  State,  or  any  company  hereafter  to 
be  incorporated  under  the  authority  of  this  State,  to  connect  with 
the  road  hereby  provided  for,  any  other  rail  road,  leading  from  the 
main  route  to  any  part  or  parts  of  this  State,  provided  that  in  form¬ 
ing  such  connection  nu  injury  shall  be  done  to  the  works  of  the  com¬ 
pany  hereby  incorporated. 


Author . . . 

(Surname  first) 


Title... 


DUPLICATE 


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Dai fe-  •/'cUs~e^4 

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973214 


Date  oi  ^3  i  tJ  Edition. 


. . Publisher. 


.fund. 


All  9  1  *  1937  Date  of  pub . l£. . Vols . ...Price _ L.*L$. . 

C  e$r 

t '  OO  To  be  charged  to . . . 

Ch±rydT* 

Recommended  by . Approved  by . 

Univ.  of  Ill.  Lib.  When  this  book  has  been  received  and  cataloged  this  card,  if  filled  out  by 

the  department,  will  be  returned  to  the  person  “recommending,”  or,  if  no  one  is 
specifiedj/then  t^e  one  “approving”  the  book  order  for  his  information. 


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3  0112  098492280 


